Bush Judge Stretches to Exempt Group from Contraception Coverage Requirement

Yesterday, Washington DC federal district court Judge Richard Leon – one of George W. Bush’s earliest judicial nominees – issued a bizarre ruling exempting a secular anti-abortion group from complying with the ACA’s contraception coverage requirement.  Judge Leon ruled that not giving March For Life the same exemption as religious entities like churches violates the Equal Protection Clause, and that requiring its employees to have insurance that covers contraception violates their religious liberty under the Religious Freedom Restoration Act.

Leon concluded that, even under the lowest level of Equal Protection scrutiny, there is no rational basis for treating an organization opposed to contraception for moral grounds differently from one opposed on religious grounds.  But that goes against a long legal tradition of recognizing the unique position of religion in our society and under our Constitution.  The Supreme Court has made clear that when the government creates an exemption to a regulation that might otherwise interfere with religious organizations’ exercise of religion, the government does not have to offer that same exemption to secular organizations.  Judge Leon even cites a Supreme Court case saying that, but then proceeds to ignore it on the basis of seeming identity between religious and non-religious opponents of certain methods of contraception.

His RFRA analysis of March For Life’s religiously-motivated employees was no less flawed.  Leon rejected the government’s assertion that their religious exercise isn’t substantially burdened because they don’t have to use the contraception they oppose.  He called that a “veiled attack” on their religious beliefs, which he wrote are not just about using the contraception, but also about participating in a health insurance plan that covers such contraception.  This is the fruit of Hobby Lobby, the 5-4 Supreme Court ruling in which the far-right Justices distorted RFRA and gave the green light to religious conservatives to seek to equate being religiously offended with having a substantial burden placed on their exercise of religion.

Adding insult to injury, Judge Leon didn’t even follow the appropriate process in granting the exemption.  Early in his opinion, he violated a judicial doctrine known as a “constitutional avoidance,” where a judge is supposed to decide cases on statutory bases if possible in order to avoid making unnecessary constitutional rulings.  In this case, Leon declined to “delv[e] into the thicket” of an inquiry into whether the rules comply with the Administrative Procedure Act (APA), which might have allowed him to avoid ruling on any constitutional issues, and instead jumped right to two constitutional arguments and one additional statutory one:

The APA permits a reviewing court to set aside an agency action that is “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or, alternatively, that is (B) contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(A)-(B). Stated differently, the APA allows courts to right two types of agency wrongs: procedural missteps and substantive transgressions. While procedural correctness is, to be sure, an important facet of any judicial inquiry, compliance with the law is the true touchstone of legality. Thus, in a context such as this, where plaintiffs have alleged serious constitutional and statutory infirmities, the appropriate starting point for the Court’s analysis is not the integrity of the agency’s decision-making process, but rather the lawfulness of the Mandate itself. I will therefore begin by addressing plaintiffs’ Fifth Amendment, RFRA, and First Amendment arguments and, because I find the first two challenges meritorious, I will refrain from delving into the thicket of an APA review.

A fair reading of the law shows that both statutes and the Constitution make clear that no exemption should have been granted. But in this case the judge’s reluctance to address the APA issue allowed him to make a much more dramatic ruling, one with potentially wide repercussions if upheld by an appeals court, without even doing the tedious work of properly adjudicating it under the APA.

It is hard to imagine this decision not being reversed by the DC Circuit.  As to what the five Supreme Court Justices who gave us Hobby Lobby would do if they took the case, it might be better not to have to find out.

PFAW Foundation

Time to End a Bush-Era Error on RFRA

Quiz:  Does the Religious Freedom Restoration Act give federal grant recipients the right to use federal funds to engage in employment discrimination on the basis of religion?

If you answered no, then you read RFRA correctly.  That law was not intended to empower anyone to cite their own religion to harm others by denying them their legal rights.  Unfortunately, the Obama Administration has continued a significant misinterpretation of RFRA by the Bush-era Justice Department’s Office of Legal Counsel (OLC).  Even when Congress specifically includes an anti-discrimination provision when authorizing a grant program, the Administration’s policy is that RFRA allows grant recipients to ignore it.

Today, People For the American Way and African American Ministers In Action are among 130 religious, education, civil rights, labor, LGBT, women’s, and health organizations urging the president to revisit the issue.  In a letter sent to the White House today, we state:

Contrary to the conclusion in the OLC Memo, RFRA is not a tool to categorically override statutory protections against religious hiring discrimination. Nor does it create an absolute free exercise right—without regard to countervailing compelling interests, as required by RFRA—to receive government grants without complying with applicable regulations that protect taxpayers and participants in federally funded programs.

With the far right increasingly trying to reframe religious liberty from a shield designed to protect religious exercise into a sword to deny other people their rights, it is more important than ever for the Administration to reconsider this holdover Bush-era policy.  A course correction now would be consistent with the many other advances in civil rights that have characterized the Obama Administration.

PFAW

Yet Another Circuit Court Upholds ACA Accommodation for Religious Nonprofits

The Tenth Circuit today released its opinion in Little Sisters of the Poor v. Burwell, becoming the latest federal appellate court to reject the claim that the Obama Administration’s contraception coverage accommodation for religious nonprofits violates their religious liberty.

This is the latest effort by the far right to redefine “religious liberty” and the Religious Freedom Restoration Act (RFRA) to use as a sword to deprive third parties of their legal rights.  Under RFRA, no federal law imposing a substantial burden on religious exercise can be sustained unless it is the least restrictive means of achieving a compelling government purpose.

The Tenth Circuit now joins the DC Circuit, the Third Circuit, the Fifth Circuit, and the Seventh Circuit in rejecting this attack on the accommodation for religious nonprofits.  Notably, all these decisions came after the Supreme Court rewrote the Religious Freedom Restoration Act (RFRA) in the Hobby Lobby case, giving certain for-profit corporations and their owners greater latitude to exempt themselves from laws they find personally offensive.  (The Sixth Circuit also reached the same conclusion, but it is still in the process of reconsidering it to make sure it is consistent with Hobby Lobby.)

The Obama Administration created a process whereby religious nonprofits can exempt themselves from the federal requirement that its employees have certain contraception healthcare coverage: Fill out a form (or now, just send a letter) and let the Department of Health and Human Services know that you won’t be providing it and say who your insurance carrier is, so that officials can inform them of their legal requirements to provide the coverage.  The religious right has called even this accommodation a violation of the religious liberty rights of nonprofits, saying it makes them complicit in the provision of contraception that violates their religious beliefs.

The Tenth Circuit concluded that the accommodation does not substantially burden Plaintiffs’ religious exercise and therefore does not violate RFRA.  The court stated:

The accommodation relieves Plaintiffs from complying with the Mandate and guarantees they will not have to provide, pay for, or facilitate contraceptive coverage.  Plaintiffs do not “trigger” or otherwise cause contraceptive coverage because federal law, not the act of opting out, entitles plan participants and beneficiaries to coverage.  Although Plaintiffs allege the administrative tasks required to opt out of the Mandate make them complicit in the overall delivery scheme, opting out instead relieves them from complicity.

The court does not question the sincerity of the plaintiffs’ assertion that filling out the form violates their religious beliefs.  But it also pointed out that under RFRA, whether a burden is substantial is a legal question that is up to the court, not the plaintiff, to answer:

If plaintiffs could assert and establish that a burden is “substantial” without any possibility of judicial scrutiny, the word “substantial” would become wholly devoid of independent meaning.  Furthermore, accepting any burden alleged by Plaintiffs as “substantial” would improperly conflate the determination that a religious belief is sincerely held with the determination that a law or policy substantially burdens religious exercise.  (internal citation removed)

Whether it’s women’s ability to access their legal right to healthcare or same-sex couples’ ability to exercise their constitutional right to marry, imagine the chaos if people could simply exempt themselves from – and severely weaken – laws they disapprove of by citing their personal religious beliefs.

But that is a recipe for a Balkanized society, not a healthy pluralistic democracy.  Citing a previous case, the Tenth Circuit states: “Law accommodates religion; it cannot wholly exempt religion from the reach of the law.”

PFAW Foundation

Hobby Lobby: One Year Later

This post is written by YP4 intern Christina Tudor.

The National Women’s Law Center (NWLC) recently released a report listing all the ways in which the year old Hobby Lobby decision has opened the door to allowing religious exemptions for all sorts of things. NWLC’s report “The Hobby Lobby ‘Minefield’: The Harm, Misuse, and Expansion of the Supreme Court Decision,” highlights how the decision has set the stage for perpetuating discrimination beyond limiting access to birth control and placing restrictions on coverage.

The distortion of “religious liberty” and the Religious Freedom Restoration Act that informed the Hobby Lobby case has led to a paramedic student claiming his religious beliefs should exempt him from vaccination requirements and some religious groups refusing to provide health care services to sexually-abused refugees. It’s even been used as a defense to try to avoid criminal prosecution for a violent kidnapping.

One Supreme Court decision can do all that damage?

Seriously?

Unfortunately, yes.

As Justice Ginsburg warned in her dissent, “The Court, I fear, has ventured into a minefield.”

It turns out that she was very right.

According to NWLC’s report, in the last year, there have been “attempts to use RFRA to challenge laws that: protect women, LGBTQ individuals, and students from discrimination; protect employees by allowing them to unionize; promote public health by requiring vaccinations; and require pharmacies to fill lawful prescriptions.”

Distorting the true meaning of religious liberty, the Supreme Court ruled that employers and businesses can use RFRA to justify their incompliance with the ACA. In other words, this decision gives bosses the freedom and the power to discriminate against their employees, and this disproportionately impacts women and their families.

The Hobby Lobby ruling has an even greater impact on working class women and their access to affordable, readily available birth control and health care services that they are entitled to and need. Lack of birth control access can also greatly increase economic instability, therefore further increasing inequality.

Equally troubling are objections to D.C. anti-discrimination laws by The Family Research Council, Concerned Women for America, Alliance Defending Freedom, USCCB and eleven other organizations based upon the distortion of religious liberty.

Clearly Hobby Lobby will continue to have a serious impact on men and women across the country, especially women of color and low-income women, as more individuals and companies try to deny basic rights under the mantle of “religious accommodations.” 

PFAW Foundation

Why The Right's Response To Marriage Equality Is Anything But Principled

This post by PFAW and PFAW Foundation Senior Legislative Counsel Paul Gordon was originally published in the Huffington Post. 

Ted Cruz, Bobby Jindal, and other conservative leaders have recently lashed out against the Supreme Court's decision on marriage equality by proclaiming that local clerks who don't personally agree with marriage equality should not be required to issue marriage licenses or perform weddings for same-sex couples - even though it's their job to provide that service to the public.

Their logic is fundamentally flawed. Civil marriage is a civil function, not a religious one. Government employees allowing someone to access their legal rights are not doing anything religious, nor are they condoning the actions being licensed any more than with any other type of license.

That's why when government employees in our country have had religious objections to divorce and remarriage, they have still had to do their jobs. And when government employees have had religious objections to interracial marriages, they have still had to do their jobs. So, too, have government officials with other religious objections to whether or how certain couples get married.

But when the particular religious belief in question is opposition to lesbians and gays, that's apparently a different matter altogether. Now, suddenly, we're told that government employees need to have their religious liberty "protected."

A principle of religious liberty that is invoked only in the context of one particular religious belief is no principle at all. It is a pretext.

The far-right movement that is coalescing around these "protections" allowing civil servants to impose their religious beliefs on others and deny them service does not have clean hands in this regard. While they proclaim loudly that they just want to "live and let live," the policies they have pursued vigorously for decades have aggressively sought to prevent LGBT people from having basic human rights. The Right's new clamor for "protections" is just another form of homophobia.

If the religious right simply wanted to "live and let live," they would not have spent these past decades seeking to impose their religious beliefs about homosexuality on others both through custom and through force of law. They would not have boycotted television networks for airing shows portraying LGBT people as ordinary people. Nor would they have screamed bloody murder when popular celebrities came out of the closet. They would not have fought to prevent us from raising children. They would not have battled to ensure that surviving members of couples be denied Social Security survivor benefits. They would not have opposed letting us serve our country in the intelligence services or in the military. They would not have put so much energy into convincing Americans that we are sexual predators going after their children. They would not have tried to bar us from teaching in public schools. They would not have threatened us with criminal prosecution just for our private, consensual sexual conduct.

Whether it's religious refusals specific to marriage, more general Religious Freedom Restoration Acts in a post-Hobby Lobby world, or Sen. Mike Lee's misleadingly named "First Amendment Defense Act," the Right is yet again attacking LGBT people. With a growing number of Americans - and now the Supreme Court - affirming that the right to marry is a right guaranteed to all regardless of sexual orientation, some on the Right have come to understand that their best tactic to fight marriage equality is to couch their homophobic goals with the language of "religious liberty" instead of explicitly speaking out against LGBT rights. But it's up to all of us to make sure that they do not succeed in these efforts to portray themselves as virtuous defenders of religious liberty, because in reality they're just waging another war against LGBT people.
 

PFAW

Activists Join Rep. Eleanor Holmes Norton to Protest Bogus ‘Religious Liberty’ Objections to DC Anti-Discrimination Law

The right-wing tactic of pushing discriminatory policies under the guise of religious freedom is nothing new -- we’ve already seen it used to hurt LGBT people in North Carolina, Louisiana, and elsewhere across the country. But now Republican lawmakers are going a step further, by attacking anti-discrimination legislation meant to protect Americans who aren't even represented in Congress.

The legislation is Washington, DC’s Reproductive Health Non-Discrimination Act (RHNDA), which would protect workers from being fired or punished by their employers for things like using birth control, getting pregnant without being married, or having an abortion. DC’s City Council recently passed RHNDA, and now Congress is using its (fundamentally undemocratic) authority to reverse DC’s local laws to repeal it on the grounds that it violates the religious freedom of employers. Last week, the House Appropriations Committee approved a rider that would block DC from using local funds to enforce RHNDA.

Today, Congresswoman Eleanor Holmes Norton (D-DC) held a press conference in DC, where she denounced these congressional attacks and praised the DC employers who have vowed to embrace RHNDA’s protections anyway.

“Republicans do not understand how united this city is against discrimination, and they do not need to; they just need to let the District be the District... Our Republican opponents claim that the Reproductive Health Non-Discrimination Act will allow pro-choice employees of anti-choice organizations to espouse their own personal pro-choice beliefs.  That falsehood must be met with the truth that employees must carry out the mission of their employer.”

Nearly 33,000 people have already signed PFAW’s petition telling Congress not to meddle with DC’s Reproductive Health Non-Discrimination Act.

PFAW

North Carolina Pastor Speaks Out About Discriminatory 'Religious Freedom' Marriage Law

In response to a bill authorizing public officials to refuse to perform same-sex marriages becoming law in North Carolina this morning, Dr. Terence K. Leathers – a pastor at Mt. Vernon Christian Church in Clayton, North Carolina and a member of People For the American Way's African American Ministers In Action – released the following statement:

“Shame on our legislature for making this harmful and unnecessary bill become law. As a pastor, I believe this is not only a blow for the dignity of all North Carolinians but also a blow for true religious liberty.

“Governor McCrory did the right thing when he vetoed this bill, and the fact that our legislature overrode it shows just how far they will go in misusing the principle of religious liberty in order to discriminate. This is a sad day for our state.”

Last week, Dr. Leathers published an op-ed in The Huffington Post calling on the legislature not to misuse religious freedom to license public officials to discriminate.

PFAW

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