What Hobby Lobby Shows Us About the Supreme Court and Civil Rights Laws: Winners and Losers in the Roberts Court

This post was originally published at the Huffington Post.

In its recent decision in Hobby Lobby, the conservative 5-4 majority -- Chief Justice Roberts and Justices Alito, Scalia, Thomas, and Kennedy -- did something that may appear very unusual. In divided cases, these five justices have the reputation for interpreting very narrowly laws passed by Congress to protect civil rights. So why did they interpret so broadly the Religious Freedom Restoration Act (RFRA), a law passed by Congress to protect the important civil right of religious freedom? The answer, unfortunately, is all too clear. Comparing Hobby Lobby with the two rulings in civil rights law cases issued by the Court over the last year, the key factor that explains how the conservative majority ruled is not precedent, the language of the statute, or congressional intent, but who wins and who loses.

Let's start with last year's rulings, both of which concerned Title VII of the 1964 Civil Rights Act which bans employment discrimination. In University of Texas Southwestern Medical Center v. Nassar, the majority ruled very narrowly in interpreting Title VII, deciding that the only way that employees can prevail on a claim that they have been fired in retaliation for raising job bias claims is to prove that they would not have been discharged "but for" the retaliatory motive. This was despite the fact that in order to strengthen Title VII, Congress added language to the law in 1991 to make clear that plaintiffs should prevail if they show that discrimination was a "motivating factor" in a job decision. As Justice Ginsburg explained in dissecting Justice Alito's attempt for the majority to draw a distinction between retaliation and other claims under Title VII, the net effect of the majority's ruling was to make it harder to prove a Title VII retaliation claim than before the 1991 law and with respect to other civil rights statutes that don't explicitly mention retaliation. The 5-4 majority had "seized on a provision adopted by Congress as part of an endeavor to strengthen Title VII," she concluded, "and turned it into a measure reducing the force of the ban on retaliation."

In Nassar, in ruling against a doctor of Middle Eastern descent in a case also involving egregious ethnic and national origin discrimination, Alito disregarded clear legislative history and language showing Congress' broad intent, as well as the interpretation of the law by the Equal Employment Opportunity Commission (EEOC). Interestingly, towards the end of his opinion, Alito appeared to reveal a key consideration behind the majority's decision. The ruling was important, he explained, to "the fair and responsible allocation of resources in the judicial and litigation systems." After all, he pointed out, retaliation claims "are being made with ever-increasing frequency," although he did not even consider how many have been proven meritorious. Agreeing with the EEOC and the plaintiff on the "motivating factor" standard, he wrote instead, "could also contribute to the filing of frivolous claims." As Justice Ginsburg put it, the majority "appears driven by zeal to reduce the number of retaliation claims against employers."

The other 2013 Title VII ruling also reflected an extremely narrow reading of the law. Vance v. Ball State University concerned a complaint by an African-American woman that she had been subjected to racial harassment and a racially hostile work environment. Under prior Title VII Court rulings agreed to by both conservative and moderate justices, the employer itself is often liable for such harassment claims when the harassment is committed by an employee's supervisor. But in Vance, in an opinion by Justice Alito, the familiar 5-4 Court majority significantly narrowed Title VII. It ruled that such vicarious employer liability applies only when the harassment is committed by a manager who can fire or reduce the pay or grade of the victim, not when it is committed by a manager who does not have that power but does control the day-to-day schedules, assignments, and working environment of the victim.

As Justice Ginsburg explained in dissent, the majority's holding again contradicted guidance issued by the EEOC as well as Congress' broad purpose to eliminate workplace discrimination. In fact, she pointed out, not even the university defendant in Vance itself "has advanced the restrictive definition the Court adopts." But again, Alito's opinion betrayed part of the majority's true motives. Its narrow interpretation would be "workable" and "readily applied," Alito explained. And it would promote "the limitation of employer liability in certain circumstances."

Something very different happened in the next Supreme Court case interpreting a Congressional civil rights statute: 2014's Burwell v. Hobby Lobby.

In that case, the same 5-4 majority that narrowly interpreted Title VII in Vance and Nassar adopted a very broad interpretation of the Religious Freedom Restoration Act (RFRA). All nine justices agreed that RFRA was enacted by Congress in response to the Supreme Court decision in Employment Division v. Smith, which restricted the protection of religious liberty by the Court under the First Amendment. But the 5-4 majority in Hobby Lobby ruled that RFRA provides "very broad protection for religious liberty" - "even broader protection than was available" under the First Amendment in pre-Smith decisions. As Justice Ginsburg put it in dissent, the majority interpreted RFRA "as a bold initiative departing from, rather than restoring, pre-Smith jurisprudence." She explained further that this broad interpretation contradicted the language of the statute, its legislative history, and a statement by the Court in a unanimous ruling in 2006 that in RFRA, Congress "adopt[ed] a statutory rule comparable to the constitutional rule rejected in Smith."

This difference in statutory interpretation was critical to the majority's ruling in Hobby Lobby -- that for-profit corporations whose owners had religious objections to contraceptives could invoke RFRA to refuse to obey the Affordable Care Act's mandate that they provide their employees with health plans under which contraceptives are available to female employees. As Justice Ginsburg explained, no previous Court decision under RFRA or the First Amendment had ever "recognized a for-profit corporation's qualification for a religious exemption" and such a ruling "surely is not grounded in the pre-Smith precedent Congress sought to preserve." The 5-4 majority's broad interpretation that RFRA applies to for-profit corporations like Hobby Lobby was obviously crucial to its holding.

In addition, however, the 5-4 majority went beyond pre-Smith case law in another crucial respect. Before a person can claim an exemption from a generally applicable law under RFRA, he or she must prove that the law "substantially burden[s] a person's exercise of religion." According to the majority, the corporations in Hobby Lobby met that standard by demonstrating that the use of certain contraceptives that could be purchased by their employees under their health plans would seriously offend the deeply held religious beliefs of their owners. As Justice Ginsburg explained, however, that ruling conflicted with pre-Smith case law on what must be shown to prove a "substantial burden." In several pre-Smith cases, the Court had ruled that there was no "substantial burden" created by, for example, the government's use of a social security number to administer benefit programs or its requirement that social security taxes be paid, despite the genuine and sincere offense that these actions caused to some religious beliefs. As Justice Ginsburg stated, such religious "beliefs, however deeply held, do not suffice to sustain a RFRA claim," except under the extremely broad interpretation of RFRA by the 5-4 Court majority.

As in the Title VII cases, Justice Alito's opinion for the 5-4 majority in Hobby Lobby was revealing about some of the majority's underlying concerns. In explaining the majority's decision to interpret RFRA as applying to for-profit corporations, Justice Alito noted that "[w]hen rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people" - in this case "the humans who own and control those companies" in the Hobby Lobby case. As Justice Ginsburg observed, the 5-4 majority paid little attention to the Court's pronouncement in a pre-Smith case that permitting a religious exemption to a general law for a corporation would "operate[e] to impose the employer's religious faith on the employees" of the corporation.

Even though the Supreme Court's 2013-14 rulings that interpreted civil rights laws passed by Congress may seem different, a common theme animates them all. Whether the 5-4 majority interpreted the statutes broadly or narrowly, the losers in all of them were women, minorities, and working people, and the winners were employers and corporations. In the majority's own words, the result is the "limitation of employer liability" under laws like Title VII designed to protect workers and the "protecting" of the "humans who own and control" corporations under RFRA.

Since all these rulings interpret Congressional statutes, not the Constitution, Congress clearly has the authority to reverse them. In fact, Congress has done exactly that with respect to other 5-4 rulings by the Court that misinterpreted civil rights statutes to harm women and minority workers and benefit their corporate employers. As recently as 2009, the Lily Ledbetter Fair Pay Act reversed a flawed 5-4 ruling that severely restricted workers' ability to file equal pay claims under Title VII. Congress is already considering legislation to reverse many of the effects of Hobby Lobby, a corrective effort that Senate Republicans have blocked by a filibuster to prevent the full Senate from even considering it. In our currently divided Congress, immediate prospects for the passage of such remedial legislation may not appear promising. But it is important to recognize the current 5-4 majority's pattern of favoring corporations and harming workers in its decisions interpreting federal civil rights laws, and to recognize and act on the ability to reverse these harmful rulings.

PFAW Foundation

The Supreme Court’s Attack on Working Women

The following is a guest blog by Beth Huang, 2010 Fellow of People For the American Way Foundation’s Young People For program.

Last Monday, the Supreme Court ruled in two critical cases with major implications for working women. The Supreme Court ruled once again that corporations are people, this time conferring religious rights that trump workers’ rights to access full healthcare. In a dissent to the Burwell v. Hobby Lobby ruling, Justice Ruth Bader Ginsberg noted “that the cost of an IUD is nearly equivalent to a month's full-time pay for workers earning the minimum wage.” Justice Ginsberg’s dissent reveals the real impacts of denying coverage of contraception for low-wage working women -- something the slim five-justice, all-male majority fails to comprehend.

To compound the attack on working women, five male Justices severely undermined the ability of care workers – 95 percent of whom are women – to collectively bargain in the case Harris v. Quinn. This assault on working people stems from the Justices’ view that the care workers in the case are not “real” public employees and thus the union cannot charge the appropriate agency fee to all of them for its bargaining services. This ruling serves the interests of anti-worker extremists at the expense of these invaluable workers who care for our families and our children.

It’s clear: a majority of Justices are trampling over the rights of working women. In light of these attacks, it’s time to organize for gender equity and economic justice for working women.

Back in 2010 when I was a student, Young People For helped me develop organizing skills that have led me to effectively advocate for and with women and workers. Through my work in student labor organizing as an undergraduate and since graduation, I have seen that workers’ rights are women’s rights, from having access to comprehensive healthcare to having a voice on the job. To build an economy that works for today’s students and youth, we need to organize locally and train new leaders in the broad effort to advance our agenda for gender equity and economic justice.

At the Student Labor Action Project a joint project of Jobs with Justice and the United States Student Association, we’re doing just that by building student power to advance an agenda that protects the rights of current workers and promotes a more just economy for students to enter when they graduate. Our campaigns focus on demanding funding for public higher education, which we know is a major source of good jobs and upward mobility for women and people of color; pushing back on Wall Street profits that fuel the student debt crisis; and raising the working conditions for Walmart workers, 57 percent of whom are women.

The Supreme Court’s decisions last week underscored the urgency of organizing for these changes. Women’s access to equal rights, power in the workplace, and comprehensive healthcare depends on it.

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

"Citizen Koch" Premieres Nationwide (And We Highly Recommend It!)

All around the country, the important film "Citizen Koch" is premiering in cities large and small. Find a screening near you!

The movie tracks the effects of the Supreme Court’s Citizens United ruling that lifted a century-long ban on corporate election spending by looking at the standoff in Wisconsin between state employees and GOP Governor Scott Walker. During his election and recall campaigns, Walker was bankrolled by billionaire brothers David and Charles Koch, demonstrating the torrent of unlimited, anonymous political spending by corporations and billionaires that was unleashed through this Supreme Court decision. As the film follows this story, it also shows the fracturing of the Republican Party and proves how Citizens United fundamentally changed how our democracy works.

After a successful Kickstarter campaign to raise funding, and even losing its public television distributor, the movie finally comes to theatres this summer. The process that led to it being pulled from public television airwaves illustrates exactly what “Citizen Koch” depicts—that money buys not only action, but also silence. As Buddy Roemer, whose presidential run is chronicled in the film, stated, “Sometimes it's a check. Sometimes it's the threat of a check. It's like having a weapon. You can shoot the gun or just show it. It works both ways.”

People For the American Way hosted the DC premiere of the documentary film “Citizen Koch” at the Washington’s West End Cinema Friday night to a sell out crowd. Friday’s premiere was followed by a panel discussion with one of the documentary’s Academy Award-nominated filmmakers Tia Lessin, along with PFAW’s director of outreach and partner engagement Diallo Brooks and PFAW president Michael Keegan. After the screening, the audience participated in a question and answer session on the effects of big money in politics and what different organizations and mobilized citizens are doing to reverse the effects of Supreme Court decisions like Citizens United and McCutcheon.

 

PFAW

Postcard from Arizona to John Roberts: Money Corrupts

In a week in which the Supreme Court turned a blind eye to the reality of money corrupting politics, a story out of Arizona provides a clear example of the insidious influence of the private prison industry and its campaign contributions. 

Arizona has been at the forefront of bad prison policy and big profits for private prison companies. People For the American Way’s 2012 report, “Predatory Privatization: Exploiting Financial Hardship, Enriching the One Percent, Undermining Democracy,” explored how Arizona officials’ political and ideological commitment to prison privatization overrode good policy and common sense. Unbelievably, faced with evidence that privately run prisons were costing taxpayers more, not less, than state-run prisons, some legislators moved to stop the state from collecting the data.

This February, we wrote about Politico’s coverage of the private prison racket. “Companies that manage prisons on our behalf have abysmal records,” author Matt Stroud asked, “So why do we keep giving them our business?” One answer is that the industry spends a fortune on lobbying and campaign contributions.

This week’s story shows how those investments can pay off. According to the Arizona Republic, House Appropriations Committee Chairman John Kavanaugh tried to slip a last-minute $900,000 earmark for private prison giant GEO Group into the state budget. The company is already expected to get $45 million this year under contracts with the state that guarantee the company at least a 95 percent occupancy rate, “virtually ensuring the company a profit for operating its prisons in Arizona.” The state Department of Corrections said the extra money isn’t needed, but Kavanaugh heard otherwise from the company’s lobbyists. GEO executives gave Kavanaugh more than $2,500 in 2012.

The good news is that the Senate Appropriations Committee dropped the extra funding “following an uproar of criticism from Arizonans.”

PFAW

Women Justices Press Important Questions During Hobby Lobby Arguments

Crowds of activists and advocacy groups gathered outside while the Supreme Court heard oral arguments Tuesday in the Sebelius v. Hobby Lobby Inc. case.

Justices Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg did not shy away from asking difficult questions that demonstrate the broad implications this case could have. Justices Sotomayor and Kagan voiced concerns regarding the implications of a ruling for the first time in our nation’s history that for-profit corporations have religious rights. Both justices questioned whether this decision would allow companies to deny access to coverage of not only contraceptive methods, but also of other lifesaving procedures employers might object to on religious grounds—like blood transfusions or vaccines.

The Huffington Post quotes Justice Kagan as saying, “There are quite a number of medical treatments that could be religiously objected to… Everything would be piecemeal, nothing would be uniform.”

Pushing the issue further, Justice Sotomayor asked, “How are courts supposed to know whether a corporation holds a particular religious belief?”

Similarly, Justice Ruth Bader Ginsburg stated that the Religious Freedom Restoration Act

was a law that was passed overwhelmingly [by] both houses of Congress. People from all sides of the political spectrum voted for it. It seems strange that there would have been that tremendous uniformity if it means [corporations are covered].

She added…

[T]here was an effort to adopt a … specific conscience amendment in 2012, and the Senate rejected that… That amendment would have enabled secular employers and insurance providers to deny coverage on the basis of religious beliefs or moral convictions. It was specifically geared to secular employers and insurance providers. And that…was rejected.

Justice Kagan noted that RFRA was considered non-controversial when it passed, an unlikely reaction if it had been understood to open the door to employers citing religious objections to complying with laws relating to sex discrimination, minimum wage, family leave, or child labor.

Justice Kagan also noted that women are “quite tangibly harmed” when employers don’t provide contraceptive coverage. This decision, however, could have far-reaching implications beyond women’s reproductive rights since this case deals with some of the same core issues seen in “right to discriminate” bills like Arizona’s, as we pointed out yesterday morning.

PFAW Foundation

PFAW and Allies Rally for Democracy at the Supreme Court

As the Supreme Court heard arguments today in McCutcheon v. FEC – a campaign finance case in which the Court will decide whether to strike down overall limits on direct political contributions – a great crowd of PFAW and allies rallied outside the Court in support of getting big money out of politics.  From students and small business owners to members of Congress – including Senator Bernie Sanders and Representatives Ted Deutch, Jim McGovern, and John Sarbanes – people from all backgrounds came together in support of protecting the integrity of our democracy.

PFAW Executive Vice President Marge Baker kicked off the speeches by painting a picture of the “people versus money” nature of the case:

Inside the court – right now – one wealthy man is asking for permission to pour even more money directly into political campaigns. But we’re here, too, and we have a different ask.  We’re asking the justices to protect the integrity of our democracy. We’re asking them to protect the voices and the votes of ‘We the People’….We’re here today saying loud and clear: our democracy is not for sale.

Also speaking at today’s rally was Montgomery County Council Vice President Craig L. Rice, Maryland State Director of affiliate PFAW Foundation’s Young Elected Officials Network.  Rice spoke about the effect of campaign finance laws on young political candidates:

As a young minority elected official, let me tell you: this [case] is extremely troubling….Young minority candidates throughout this country are routinely outspent and therefore denied the ability to serve in elected roles….Money should not determine who serves in office.

Howard University student Brendien Mitchell, a fellow in affiliate PFAW Foundation’s Young People For program, talked about the importance of being able to hear the political voices of young people in the midst of voter suppression efforts and massive spending by the wealthy in our democracy:

What about the freedom of young Americans who cannot donate grandiose sums of money to political candidates?....We gather to say that this is our country.  And that in a case of money versus people, the answer should be apparent: the people.

One of the highlights of the day was hearing from Moral Monday demonstration leader Rev. Dr. William Barber, II, president of the North Carolina State Conference of the NAACP and a member of PFAW’s African American Ministers in Action.  Rev. Barber highlighted the millions of dollars Art Pope has poured into conservative projects and campaigns in his home state of North Carolina:

We [in North Carolina] know firsthand that when you undermine laws that guard against voter suppression, and you undo regulations on the ability for corporations and individuals to spend unchecked amounts of money to influence and infiltrate and literally infect the democratic process, it has extreme impacts.

Extreme impacts – and not only on the electoral process itself, but also on a whole host of issues shaping the lives of everyday Americans.  Whether you care most about protecting voting rights, preserving our environment, or workers getting paid a livable wage, a political system where the super-rich can make six-digit direct political contributions harms us all.

And that’s why organizations and activists with focuses ranging from civil rights to environmental protection to good government issues came together today with a common message: our democracy is not for sale.

PFAW

Rallying for Marriage Equality – Now

“What do we want?  Equality!  When do we want it? Now!”

This morning PFAW staff and members joined a crowd of thousands gathered in front of the Supreme Court to chant, march, and speak out in support of marriage equality.  As Supreme Court Justices heard the first round of oral arguments on the marriage cases before them this term, multitudes of supporters gathered on the Court steps to share a simple message: our country is ready for marriage equality.

Today, the Court heard arguments on California’s anti-gay Proposition 8. Tomorrow, it will be considering the federal Defense of Marriage Act (DOMA). In the weeks leading up to today, we have been asking friends of PFAW to share why dumping DOMA is important to them.  As I stood out at the rally this morning, I thought about all of the people who had been brave enough to share their story with us – and what this day meant to each of them.

For Bishop Allyson Abrams, a member of PFAW’s African American Ministers in Action, it’s time to dump DOMA “because it hurts and humiliates those who know love and who practice showing it each and every day.”  For Sam Paltrow, member of affiliate PFAW Foundation’s Young People For Program, DOMA has to go because it “teaches that gay families do not matter,” and for Young People For member Erik Lampmann, it’s an “issue of economic justice.”  Missoula City Councilmember Cailtin Copple, member of affiliate PFAW Foundation’s Young Elected Officials Network, “would like the chance to marry the person [she] loves someday.” 

While each person at the Supreme Court rally today – and those at the marriage rallies in all 50 states across the country – had a different reason for being there, we had a common goal:  Equality.  Now.

PFAW

A Monumental Day on Multiple Fronts

This morning I skipped the office and headed straight over to the Hill to witness history as the Supreme Court handed down its ruling upholding President Obama’s Affordable Care Act legislation. (Click here for the PFAW statement.)

Now I’m headed back to the hallowed halls of the House to witness another bit of history as Chairman Honda and his colleagues launch the Congressional Anti-Bullying Caucus.

In preparation for a full afternoon and evening of events, the Caucus has released Bullying: Framework of Federal Efforts & Current Legislation.

Bullying in the United States has been brought into the national dialogue due largely to mass media attention including coverage of bullying behavior in our schools, communities, and online, as well as major motion pictures such as the 2012 documentary Bully (directed by Lee Hirsch). This interest has led to increased legislative attention in the United States Congress, as well as increased resources dedicated toward bullying prevention and intervention in federal Departments. The federal government mostly addresses bullying through the United States Departments of Justice, Education, and Health & Human Services, while Defense, Agriculture, and Interior also serve as part of the Federal Partners in Bullying Prevention Steering Committee. Officials from these agencies have launched two prominent websites that serve as a central resource for bullying prevention: stopbullying.gov and findyouthinfo.gov.

The report lays out the federal landscape for the anti-bullying fight.

PFAW and AAMIA have voiced their support and will be in the room as the day unfolds.

Stay tuned!

PFAW