Supreme Court Action on Marriage Cases Is No Surprise

The Supreme Court's decision this morning to not hear appeals of any of the pending marriage equality appeals came as a surprise to some. But as PFAW Foundation's Supreme Court 2014-2015 Term Preview explained last month, most of the Justices may have strongly wanted to avoid taking these cases if at all possible:

Conservatives like Scalia and Thomas, who have in case after case shown their hostility to LGBT equality but may be unsure of how Kennedy would vote, might not be willing to risk a Supreme Court precedent that same-sex couples have a constitutional right to marry. From their perspective, if they can't change the outcome around the country, why make it worse by adding a jurisprudential nightmare from the nation's highest court that would taint American law for decades to come?

For Justices likely to recognize the constitutional right to marriage equality, the calculation might be different. They, too, not knowing Kennedy's position, might not want to risk a 5-4 ruling in the "wrong" direction on a major constitutional and societal issue. But even if they could be certain of being in the majority, they might find advantages to having the Court stay out. Justice Ginsburg, for instance, has suggested publicly that Roe v. Wade went "too far, too fast," provoking a backlash that could otherwise have been avoided. If the legal question of marriage equality is being decided rightly in all the circuit courts, some Justices might rather leave well enough alone. In fact, Justice Ginsburg told a group of law students in mid-September that without a circuit split, she saw "no urgency" for the Court to take up the issue now, although she added that she expects the Court to take it up "sooner or later."

It looks like the "sooner or later" will be when – or if – a circuit court ever rules against same-sex couples seeking to vindicate their right to marry.

The Term Preview also discussed some of the specific legal issues that an eventual Supreme Court ruling could address, beyond the black-or-white question of whether same-sex couples can marry. For now, absent a circuit court ruling upholding a marriage ban and a subsequent decision by the Supreme Court to hear the appeal, these questions will remain unresolved at the national level. But they are important questions:

Exactly which constitutional right do the bans violate? While numerous courts have ruled in favor of same-sex couples, they have been anything but unanimous in their reasoning: Some have suggested that the bans violate the Due Process Clause, because the longstanding, fundamental right to marry includes the right to marry someone of the same sex. Other judges indicate that the bans violate the Equal Protection Clause because they deny the right to marry based on the sex of the people seeking to get married. Still others suggest that the bans violate the Equal Protection Clause because they discriminate against gays and lesbians. While the different legal rationales would all have the same immediate result (marriage equality), they could create very different legal precedents and have very different impacts down the line as lower courts consider other types of discrimination, whether aimed at gays and lesbians, at transgender people, or at others.

A Supreme Court ruling might decide what level of scrutiny the Equal Protection Clause requires for laws that discriminate against gay people, an issue not squarely faced in previous cases. Most government classifications are subject to – and easily pass – "rational basis" scrutiny by the courts: The law is constitutional as long as it's rationally related to some legitimate government interest. (The Court has said that animus against gays and lesbians is not a legitimate purpose, which in the past has let it bypass the question as to whether anti-gay laws warrant more scrutiny from the courts.)

But a few types of laws trigger heightened Equal Protection scrutiny. Sex-based classifications are subject to intermediate scrutiny: They must be substantially related to an important government interest. Race-based classifications are generally subject to strict scrutiny, the highest level: They must be narrowly tailored to achieve a compelling government interest. If the Court rules that laws discriminating against lesbians and gays warrant some level of heightened scrutiny, that would have an enormous impact nationwide on all kinds of laws that discriminate against lesbians and gays, not just marriage bans.

The Court's discussion of this issue could also shed light on whether eliminating private discrimination against LGBT people is (in the Court's eyes) a compelling government interest. This could have an enormous impact as courts consider right wing challenges to anti-discrimination laws on the basis of the federal Religious Freedom Restoration Act or state-law analogs.

This last point is particularly important, given efforts by the far right to reframe anti-discrimination and women's health laws as attacks on religious liberty. As affiliate People For the American Way Senior Fellow Peter Montgomery wrote earlier today on Right Wing Watch:

[R]edefining "religious liberty" has become the central culture war issue and the primary legal and public relations strategy chosen by conservative evangelicals and their allies in the Catholic hierarchy to resist the advance of LGBT equality and restrict women's access to reproductive care.

This right-wing reframing effort might have been hurt by a strong Supreme Court ruling emphasizing the critical importance of ending discrimination against lesbians and gays.

PFAW Foundation

Supreme Court Declines to Review New Mexico Rejection of Wedding Photographer Case

The U.S. Supreme Court today rejected a request to consider Elane Photography v. Willock, a case brought by a wedding photography business that had been penalized for violating a New Mexico law against discrimination on the basis of sexual orientation. After the New Mexico Supreme Court unanimously rejected its free speech and religious liberty claims, the company appealed to the U.S. Supreme Court on the grounds that taking pictures is expressive activity protected by the First Amendment, and that the government has no right to force a photographer to take a particular picture. The Supreme Court declined to take the case.

People For the American Way is committed to religious liberty, freedom of expression, and LGBT equality, and recognizes that people who support both religious freedom and full legal equality for LGBT people can and do disagree on where lines should be drawn in such cases.  A small business person who wants to run a business that reflects their values can be a sympathetic figure. Some believe a mom-and-pop company whose owners have religious objections to same-sex marriage should have the right to turn away a gay couple under those circumstances.  But it is hard to identify a legal principle by which a business covered by an anti-discrimination law would be allowed to ignore the law on the basis of the owner’s religious beliefs on marriage, but not on the basis of his religious beliefs on segregation or gender inequality.

The tension between the rights of a business owner and the ability of a legislature to ban discrimination as a matter of public policy finds eloquent expression in New Mexico Supreme Court Justice Richard C. Bosson’s concurrence in the Elane Photography case.  The court unanimously upheld a finding by the state’s Human Rights Commission that refusing to provide services to a same-sex couple had violated anti-discrimination law. Bosson wrote that the court’s ruling means that the business owners “are compelled by law to compromise the very religious beliefs that inspire their lives. Though the rule of law requires it, the result is sobering.”

More from Bosson’s opinion:

On a larger scale, this case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice. At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less. The Huguenins [the business owners] are free to think, to say, to believe, as they wish, they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life…In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs , so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship.

Bosson’s opinion recognizes that there are competing interests at play and that can make line-drawing difficult.  He treats the religious liberty questions respectfully.

Of course, that hasn’t stopped Religious Right from portraying the decision, and Bosson’s opinion, as pure tyranny.  A lawyer for the Alliance Defending Freedom called the decision “a blow to our client and every American’s right to live free.” Cases in Colorado and Oregon involving bakery owners that declined to make a wedding cake for a same-sex couple and faced punishment for violating anti-discrimination laws have generated similar rhetoric. 

Most Americans do not see tyranny in the balancing act that legislatures and courts are engaged in. They believe the principle staked out in PFAW Foundation’s Twelve Rules for Mixing Religion and Politics: it is legitimate for government to require religious organizations and individuals to abide by rules and regulations that promote the common good. A poll conducted by Third Way and HRC just before the U.S. Supreme Court decision overturning the Defense of Marriage Act found that 68 percent of Americans believe that small business owners should not be allowed to refuse service to gays or lesbians, regardless of their religious beliefs. When asked specifically about wedding-related services like catering, flowers, or cakes, nearly as many – 64 percent – were opposed to laws that would allow small businesses to deny services based on their religious beliefs.

PFAW

Defining Religious Liberty: Little Sisters' Little Victory

Among the many court cases challenging contraception requirements under the Affordable Care Act, the case involving the Little Sisters of the Poor has been, and continues to be, a strange one. The latest wrinkle came on Friday in what SCOTUSblog’s Lyle Denniston calls a “partial win” for the order of nuns.

The Little Sisters, represented by the Becket Fund for Religious Liberty, appealed to the Supreme Court to prevent the group from having to sign a form documenting its religious objection to providing contraception coverage while its broader challenge to the law moves through the courts. The Tenth Circuit had rejected a similar request.

Under the Obama administration’s accommodation for religious groups, that form would exempt the organization from providing or paying for contraception coverage, and that responsibility would pass to the group’s insurer. In a brief to the Supreme Court, the Solicitor General’s office said that by Becket’s reasoning, a Quaker couldn’t be required to attest to his religious objections before being absolved of military obligations. But Becket insisted that the form acted as a “permission slip” that would trigger contraception coverage, and that would make the nuns complicit.

What makes this argument even stranger is the fact that the Little Sisters’ insurer is classified as a “church plan,” which is exempt from enforcement of the ACA requirement. So whether or not the Little Sisters signed the form, their lay employees would still not have access to coverage.

On Friday, the Supreme Court granted the Little Sisters’ request for an injunction, with a proviso. The group did not have to sign the government’s religious objection form, but it did have to notify the Department of Health and Human Services of its religious objections by letter. The Becket Fund declared victory and announced itself “delighted” by the Court’s compromise.

So, to recap: requiring a religious organization to sign a form opting out of providing contraception coverage is religious tyranny, but requiring a religious organization to send a letter to HHS stating its objections to providing contraception coverage is a victory for religious freedom.

Just wait until the Supreme Court hears the more far-reaching Hobby Lobby case, in which Becket and its client seek to establish the principle that for-profit companies can opt out of laws protecting their employees if those laws conflict with the religious beliefs of the corporation’s owners.

 

PFAW Foundation

Celebrating Religious Freedom

January 16 is Religious Freedom Day, which commemorates the Virginia General Assembly’s approval of Thomas Jefferson’s historic Virginia Statute for Religious Freedom, a precursor to the religious liberty protections in the First Amendment to the U.S. Constitution.

In this year’s Religious Freedom Day proclamation, President Barack Obama writes,

Today, America embraces people of all faiths and of no faith. We are Christians and Jews, Muslims and Hindus, Buddhists and Sikhs, atheists and agnostics. Our religious diversity enriches our cultural fabric and reminds us that what binds us as one is not the tenets of our faiths, the colors of our skin, or the origins of our names. What makes us American is our adherence to shared ideals -- freedom, equality, justice, and our right as a people to set our own course.

America proudly stands with people of every nation who seek to think, believe, and practice their faiths as they choose. In the years to come, my Administration will remain committed to promoting religious freedom, both at home and across the globe. We urge every country to recognize religious freedom as both a universal right and a key to a stable, prosperous, and peaceful future.

As we observe this day, let us celebrate America's legacy of religious liberty, embrace diversity in our own communities, and resolve once more to advance religious freedom in our time.

Melissa Rogers, a widely respected advocate for religious liberty who currently serves as special assistant to the president and executive director of the White House Office of Faith-based and Neighborhood Partnerships, also published a reflection on Religious Freedom Day.

Rogers celebrates the Religious Land Use and Institutionalized Persons Act, which passed Congress by unanimous consent in 2000 with backing from a politically and religiously diverse coalition. RLUIPA (pronounced R-loopa) has helped Christians, Jews, Muslims, Sikhs, people who practice Native American traditional religions and others protect their ability to meet and worship, and has helped people in prisons, jails, mental institutions, and state-run nursing homes preserve their religious freedom.

The values embodied in RLUIPA are universal ideals.  Department of Justice attorneys have provided technical assistance on issues involving construction of places of worship to government officials in Spain, Indonesia, Bosnia-Herzegovina, and other countries wrestling with these same issues.  In 2012, the Islamic Center of Murfreesboro, Tennessee won the right to move into its new mosque with the help of a RLUIPA suit brought by the Department of Justice. On the day of the court decision, the mosque’s Imam, Sheikh Ossama Bahloul, remarked that America’s dedication to religious freedom can serve as a model for others around the world, and added:   “I think this is an opportunity for us all to celebrate the freedom and liberty that, in fact, exist in America and to teach our young people to believe even more in the U.S. Constitution.”

People For the American Way and PFAW Foundation celebrate religious freedom by working to uphold the First Amendment’s twin pillars of religious liberty: the Establishment Clause, which mandates the separation of church and state and prevents government from playing religious favorites, and the Free Exercise Clause, which protects individuals’ right to worship and exercise their faith free from government interference.

Religious liberty is central to the American Way, but it has also become a rallying cry for Religious Right leaders and their political allies, who all too often portray criticism as persecution, and policy disagreement as tyranny. That poisons our political climate.

Like other constitutional guarantees, religious liberty is fundamental but not absolute, particularly when it comes into tension with other principles like equality under the law or protecting public health. Advocates for religious freedom frequently disagree about how to apply religious liberty principles in specific cases, and where courts should draw the lines in cases balancing competing interests.  These are complex and often very contentious issues. People For the American Way Foundation’s “12 Rules for Mixing Religion and Politics” set out principles for bringing religion and religious values into the public arena in ways that are constructive rather than divisive. 

PFAW

The Perils of Religious Politicking

Sen. Mark Pryor of Arkansas, a centrist Democrat facing a tough re-election campaign, launched a new political ad this month, and both the ad and the responses to it have highlighted the challenges of mixing religion and politics in ways that respect religious freedom, pluralism, and the spirit of the Constitution.

In Pryor’s new ad, he doesn’t talk about political issues or his opponent; he just talks about the Bible.

“I’m not ashamed to say that I believe in God and I believe in His word. The Bible teaches us no one has all the answers. Only God does. And neither political party is always right. This is my compass, my north star. It gives me comfort and guidance to do what's best for Arkansas. I’m Mark Pryor, and I approve this message because this is who I am and what I believe.”

The centrality of faith in Pryor’s life is well-known. But the ad was slammed by Brad Dayspring at the National Republican Senatorial Committee, who mockingly suggested the ad contradicted comments Pryor had made last year: “The Bible is really not a rule book for political issues. Everybody can see it differently.”  But I don’t see the contradiction. In both, Pryor seems to be acknowledging that even people who look to the Bible for guidance can disagree on particular policy positions. Dayspring’s attack drew a surprising rebuke from Pryor’s Republican opponent, Rep. Tom Cotton, who called the NRSC response “bizarre and offensive.”

The ad has drawn a mixed response from progressive commentators. Ed Kilgore at the Washington Monthly praises Pryor for “basically saying the Bible teaches some humility and reserves wisdom and final judgment to Gold Almighty, not to his self-appointed representatives on earth.” But Paul Waldman at the American Prospect takes issue with Pryor’s “I’m not ashamed” line, suggesting it is a dog-whistle for those who believe the Religious Right’s charge that Christianity is under attack in America.

Waldman notes, however, that the ad could have been a lot worse, reminding us of this notorious Rick Perry ad from 2012 which starts with very similar “I’m not ashamed” language but then gets “much more vulgar.”

A more recent example of the “a lot worse” school of religion and politics came from Rep. Paul Broun of Georgia, who is currently running for the Senate. In a six-minute speech from the floor of the House of Representatives in September, he mixed personal religious testimony with Christian-nation claims that the government should be run according to his interpretation of the Bible.

Broun’s remarks start with a core Christian Reconstructionist principle: that God ordained family, church and government and gave each a specific area of authority. But, he says, because of “this mistaken idea that we’re supposed to have a separation of church and state, the family and the church have abdicated a lot of its duties over to government.” (Reconstructionists believe that God did not authorize government to be involved, for example, in education or the reduction of poverty; that role is meant for family and church.)

Broun calls the Bible “the basis of our nation,” and says the fact that we aren’t running society accordingly will mean the death of our Republic.  The founding fathers, he says, were “Bible-believing Christians” who believed that “every aspect of life should follow the dictates of God’s inerrant word. That’s what I believe in. That’s what we should all believe in.”

This message is not new for Broun. Last year Kilgore wrote about a Broun speech in which he said that evolutionary science is “from the pit of hell” and that the Bible is a “manufacturer’s handbook” that “teaches us how to run all of public policy and everything in society,” as well as our lives as individuals. “That’s the reason as your Congressman I hold the Holy Bible as being the major directions to me of how I vote in Washington, D.C.”

There are important distinctions between Pryor’s ad and Broun’s speeches.  It is helpful to look at them through the prism of People For the American Way Foundation’s 12 Rules for Mixing Religion and Politics. These “rules of the road” are meant to generate a broader conversation about how we can create and sustain a civic space that reflects the principles of the Constitution and the values of respectful civic discourse, one that welcomes the participation of people of all faiths and people of none. Consider this passage from the 12 Rules:

Public officials are free to talk about their faith, the role it plays in their lives, and how it influences their approach to issues, but must not use the power of their office to proselytize or impose particular religious beliefs or practices on others.

Pryor’s ad seems to be intended to keep to the appropriate side of this rule, where Broun clearly violates the rule by proselytizing from the floor of the House.

In addition, Broun, like David Barton and other Religious Right leaders, claims that the right-wing position on every political issue finds some grounding or justification in the Bible, which should be the final word on every policy matter.  Broun’s insistence that every aspect of law and society should fit his interpretation of the Bible also violates another rule, “It is appropriate to discuss the moral and religious dimensions of policy issues, but religious doctrine alone is not an acceptable basis for public policy.” In contrast, Pryor’s ad explicitly says that he doesn’t claim to have all the answers, even though he uses the Bible as his moral compass.

A Religious Right critic of Pryor’s ad broke another of PFAW Foundation’s rules: “Religion should not be used as a political club.” As blogger Jeremy Hooper noted, Andrea Lafferty of the Traditional Values Coalition was “outraged” by Pryor’s ad. She said his claim to be guided by the Bible “the furthest thing from the truth” because he had voted for the Employment Non Discrimination Act, which protects people from being discriminated at work based on their sexual orientation or gender identity. Lafferty is of course free to believe that fairness is not a biblical value; but she shouldn’t denigrate the sincerity of Pryor’s faith because he disagrees.

Still, Pryor’s ad is a cautionary tale about the fact that, as he himself has said, the intersection of faith and politics can be difficult to navigate.  It can come across as saying, “vote for me because I’m a Christian,” a message that fails to respect America’s constitutional ideals and growing religious pluralism. And it could be seen as uncomfortably close to the message of Mike Huckabee’s 2008 primary campaign against Mitt Romney in Iowa, which essentially boiled down to, “vote for me because I’m the right kind of Christian.” Candidates or campaigns that suggest only Christians, or certain kinds of Christians, are worthy of public office violate the spirit if not the letter of the Constitution’s prohibition on a religious test for public office. 

With Christian-nation advocates like David Lane organizing all over the country for the 2014 and 2016 elections, there’s little doubt that the months ahead will bring some downright toxic mixing of religion and politics.

PFAW

Supreme Court to Hear Challenges to ACA's Contraception Coverage

To no one's surprise, the Supreme Court announced today that it will be deciding the legality of the ACA's provision regarding insurance coverage for contraception, which opponents claim violates the religious liberty of for-profit corporations and their owners. The Court will be hearing two cases together: Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius. We will be hearing and reading a lot about these cases in the next few months.

At issue is whether the law violates the Religious Freedom Restoration Act or the Free Exercise Clause of the First Amendment. Under RFRA, a federal law is invalid if it imposes a substantial burden on religious liberty, unless it is the least restrictive means to serve a compelling government interest. (This law was passed in 1993 to recreate the substantial scrutiny laws had faced under the Free Exercise Clause until the Supreme Court altered the test in 1990.)

Hobby Lobby is an arts and crafts chain store with 500 stores and 13,000 full-time employees. The Green family who own and operate Hobby Lobby also do business through a corporation called Mardel, a for-profit business operating 35 Christian bookstores with almost 400 employees. The Greens and their corporations argue that the contraception coverage provision poses a substantial burden on their religious liberty in violation of RFRA.

Perhaps the most dramatic claim made in these cases is that for-profit corporations operating hundreds of stores and with thousands of employees have religious liberty interests at all. That's what the Tenth Circuit ruled in the Hobby Lobby case, citing Citizens United, and concluding that the mandate fails under RFRA.

The claim that for-profit corporations have religious rights was rejected by the Third Circuit in the Conestoga Wood Specialties case. That court also ruled that the corporation's family owners don't suffer a religious liberty violation because the law's coverage requirement and the financial penalty for noncompliance fall not upon them as individuals, but upon the corporation. According to the lower court, since they chose to engage in business using the corporate form, accepting all the financial benefits that brings, they cannot "move freely between corporate and individual status to gain the advantages and avoid the disadvantages of the respective forms."

It now appears that the Supreme Court will make important rulings on the religious liberty interests of both for-profit businesses and the individuals who own them.

People can and do disagree on the interplay between individuals' religious liberty and general laws that go against people's religious beliefs. PFAW Foundation's "Twelve Rules for Mixing Religion and Politics" addresses this debate. Government does have the right to demand people and businesses comply with reasonable regulation and social policy, while at the same time, religious liberty is a key constitutional right. The debate over their interplay should be held in a way that does not devolve into claims of a "war against religion," which we hear all too often from the far right.

As far as corporate religion is concerned, the five arch-conservative justices who gave us Citizens United and who routinely bend the law to favor corporate interests may see this as an opportunity to strike another blow for "corporate personhood" and against the workers who the ACA is designed to protect.

PFAW Foundation

Religious Freedom Anniversary Highlights Divisions Among Current and Former Allies

A symposium on the 20th anniversary of the Religious Freedom Restoration Act hosted by First Amendment advocate Charles Haynes at the Newseum in Washington D.C. on November 6 demonstrated one premise of People For the American Way Foundation’s 12 Rules for Mixing Religion and Politics – that people who support a core constitutional principle like religious liberty can disagree with how that principle should be applied. In recent years, religious conservatives have increasingly charged that those who disagree with them on this line-drawing are tyrannical enemies of faith and freedom.  The RFRA anniversary was a reminder that, as Bill Moyers wrote in his introduction to the 12 Rules, “We can simultaneously share a strong commitment to religious liberty, while disagreeing over the application of that principle in a given circumstance.”

In fact, an almost unimaginably broad coalition worked to pass RFRA in 1993, including People For the American Way and the ACLU, the National Association of Evangelicals and Concerned Women for America, and a huge array of religious and civil rights groups.  Also unimaginable in our political climate: RFRA passed the Senate 97-3 and the House unanimously by voice vote. But divisions within the coalition developed just a few years later and persist today.

RFRA was a response to the Supreme Court’s 1990 Smith decision in a case involving Native Americans who were denied unemployment benefits because they had violated state anti-drug laws through the sacramental use of peyote.  The Court ruled that as long as the law in question was applied generally and not designed to target a particular religious practice, there was no real recourse for people whose exercise of religion was restricted. The decision toppled long-standing precedent and left advocates for religious liberty deeply concerned that religious minorities would suffer if there were no legal requirement for reasonable accommodation of their beliefs.

RFRA states that if a law places a substantial burden on a person’s exercise of religion, the government must demonstrate that the law is serving a compelling interest and does so in the least restrictive way. In 1997, the Supreme Court upheld RFRA as it applies to the federal government, but not to the states.  Efforts to re-mobilize the RFRA coalition to pass a new law failed when civil rights advocates feared that a broad standard could be used to undermine state civil rights laws such as laws against discrimination based on sexual orientation.

Oliver Thomas, a co-chair of the original RFRA coalition, said it is not surprising that RFRA gets less popular as it gets older and its “majestic generalities” get applied in contentious cases. Organizations that were allies in passing RFRA are now on both sides of political and legal disagreements about how its standards should apply in a variety of situations, including the mandate under the Affordable Care Act that insurance plans include contraception, the proposed Employment Non Discrimination Act that just passed the Senate, and the advance of marriage equality.  Even among ENDA’s backers there are disagreements about the nature and extent of religious exemptions in the bill.

The first part of the anniversary symposium, which included PFAW Foundation Board Member Rabbi David Saperstein, presented an insider view of RFRA’s history: the development of the RFRA coalition, the politics of writing the law and building congressional support.  One historical tidbit: coalition members had to work hard to overcome objections raised by the U.S. Conference of Catholic Bishops, who feared the law might somehow give a weapon to their opponents on abortion rights issues.  Rep. Henry Hyde told coalition members that the bill would not move until they addressed the bishops’ concerns.

That history is particularly interesting given that conservative Catholics are now using RFRA to challenge the contraception mandate.  A discussion of the contraception mandate in the Affordable Care Act featured Lori Windham from the Becket Fund for Religious Liberty, which represents a number of companies, business owners, and organizations challenging the mandate, and Dan Mach of the ACLU Program on Freedom of Religion and Belief, which argues that the contraception requirement does not substantially burden the religious freedom of business owners, and that the Obama administration’s accommodation for religious organizations is more than sufficient.  Mach noted that while religious liberty is fundamental, it is not absolute, and should not be used to infringe the rights of others. 

Another issue discussed by the panelists was whether RFRA protects for-profit corporations – not the owners, but the corporation itself as an entity.  Some of the panelists discussing RFRA’s history agreed that conversation about violations of religious liberty were focused on individual people, not for-profit corporations, though some said the debate on RFRA and related laws assumed that companies would be covered.  The Becket Fund’s Windham made a case for including such corporations with RFRA’s protections, saying constitutional rights shouldn’t depend on your tax status. The Constitutional Accountability Center has argued otherwise.

Doug Laycock, a University of Virginia law professor, is among the most prominent legal scholars on religious liberty.  He finds himself positioned on differing sides in various culture war battles. Just a day before the anniversary symposium, Laycock argued before the Supreme Court, representing people who are challenging the practice of sectarian prayer at city council meetings in the Town of Greece case.  In that case he stood with advocates of strong church-state separation. On other issues, such as whether a business owner should have the right not to provide services related to a same-sex wedding, he stands with religious conservatives who are pushing for broad religious exemptions to anti-discrimination laws.

Laycock dismissed right-wing charges that the Obama administration is waging a war on religious liberty. He said the administration has gone to “remarkable lengths” to accommodate religious organizations on the contraception mandate and said he doubts that opponents will be able to convince judges that the current rule creates a substantial burden under RFRA. Obviously, the Becket Fund and other Religious Right legal groups and their clients strongly disagree. Later this month the Supreme Court will consider whether to accept for consideration four cases involving for-profit companies challenging the mandate. Cases involving non-profits have not advanced as far.

A panel on other current controversies placed them in the context of increasing religious pluralism in America, including the rapid growth of “nones” – people who claim to religious affiliation.  One panelist noted that religious and civil rights groups can still find common ground in opposition to laws targeting religious minorities, as many did in opposition to Oklahoma’s anti-Sharia law, which was found unconstitutional earlier this year. But it should be noted that some Religious Right groups have in fact backed such laws, and some opposed the building of the Islamic community center in New York that was deceptively dubbed the “Ground Zero Mosque.”

Laycock worries that culture war battles are weakening Americans’ commitment to religious liberty.  He faults conservative religious groups for continuing to fight legal marriage equality for same-sex couples. But he also believes LGBT rights advocates should be more willing to accept broad religious exemptions. Laycock said that conservatives’ dug-in resistance to equality diminishes the incentives for gay-rights activists to accommodate them.  The challenge, as he sees it: on issues of sexual morality, one side views as a grave evil what the other side views as a fundamental right.  In that climate, tens of millions of Americans believe that “religious liberty” empowers their enemies, and neither side is willing to embrace what Laycock considers “live and let live” solutions.

Marc Stern of the American Jewish Committee agreed with Laycock’s concerns about a winner-take-all approach to religious freedom issues, which he said reflects the broader political climate.  But the courts will continue to undertake the balancing act required by the Constitution and by RFRA when constitutional principles come into tension.  And, he said, once the courts work through issues regarding contraception and LGBT equality, we will all still need to grapple more with larger cultural and legal questions, such as those involving the growing number of nonbelievers who are reshaping America’s religious landscape.

The anniversary symposium, “Restored or Endangered? The State of Religious Freedom,” was sponsored by The Baptist Joint Committee for Religious Liberty, Christian Legal Society, American Jewish Committee, Religious Action Center of Reform Judaism, Union of Orthodox Jewish Congregations, Becket Fund for Religious Liberty and Religious Freedom Center of the Newseum Institute.  

PFAW Foundation

Dahlia Lithwick and Jamie Raskin Discuss New Supreme Court Term

Earlier today, PFAW hosted a telebriefing for our members on the upcoming Supreme Court term, featuring two of the nation's most respected progressive experts on the Court: Dahlia Lithwick, a senior editor at Slate magazine, writes "Supreme Court Dispatches" and covers other legal issues for the magazine. Jamie Raskin is a professor of constitutional law at American University Washington College of Law, founder of its acclaimed Marshall-Brennan Constitutional Literacy Project, a Maryland state senator, and a senior fellow at People For the American Way.

You can listen to a full recording of the call here:

Raskin and Lithwick discussed the ominous turn that our law seems poised to take over the next few months at the hands of the Roberts Court. They talked about the cases where the far right Justices appear ready to remove key campaign contribution limits (McCutcheon v. FEC), weaken women's ability to exercise their reproductive rights (Cline v. Oklahoma Coalition for Reproductive Justice and McCullen v. Coakley), undermine church-state separation (Town of Greece v. Galloway), make it far easier to engage in housing discrimination (Mount Holly v. Mt. Holly Gardens Citizens in Action), and decimate workers' ability to form unions (Unite Here Local 355 v. Mulhall). Raskin and Lithwick answered questions from PFAW members and noted a common theme of many of these cases: erasing the moderate-conservative legacy of Sandra Day O'Connor by overruling precedents she was involved with.

They also discussed a case that has not made it to the Court yet but likely will: the Hobby Lobby case challenging the contraception coverage provisions of the Affordable Care Act. A lower court struck them down, ruling that corporations have religious liberty rights under the First Amendment just like they have free speech rights under the First Amendment (see Citizens United).

For more information about the cases discussed by Lithwick and Raskin, check out our affiliate PFAW Foundation's report on the Key Cases In The Supreme Court's New Term.

PFAW

Challenging the Right on Religious Liberty

The ongoing campaign by the Religious Right and its conservative Catholic allies to redefine religious liberty in America – which has been covered extensively by PFAW and Right Wing Watch – is the focus of a new report released on Monday by Political Research Associates, a think tank that also monitors right-wing organizations. “Redefining Religious Liberty: The Covert Campaign Against Civil Rights,” was written by Jay Michaelson, who published a condensed version in the Daily Beast.

Michaelson’s report reviews the organizational players and the strategies they employ, among them: mixing fact and fiction; claiming that there is a war on religious liberty; and reversing the roles of victim and oppressor to portray as religious liberty “victims” people who claim a right to discriminate against others. He notes that Religious Right disinformation has had some success in shaping public opinion: in Minnesota last year a large plurality of marriage equality opponents believed that if marriage equality became the law, churches would be forced to solemnize same-sex marriages, even though there is universal agreement that the First Amendment guarantees that churches are and will always be free to choose which relationships to bless or not to bless.

The PRA report includes the following recommendations for social justice advocates:

1. Define and publicize the campaign to redefine religious liberty

2. Organize a unified response

3. Counter misinformation

4. Reclaim the religious liberty frame

5. Develop academic responses

6. Leverage religious communities

7. Ongoing research and monitoring

Religious liberty was also the topic of a forum at the Newseum in Washington, D.C., cosponsored by the Newseum’s Religious Freedom Education Project, Moment Magazine, and the Committee on Religious Liberty of the National Council of Churches. Moment, an independent Jewish Magazine, has also published a special Religious Freedom issue for March/April 2013.  At the conference, two large panels brought together a range of religious and secular voices to discuss and debate the meaning of religious liberty and the claims that liberty is under attack in the U.S. today. It's impossible to give complete coverage in a blog post but here are some highlights.

Charles Haynes, the First Amendment expert who heads Newseum’s religious liberty committee, noted that the broad coalition that came together to back the Religious Freedom Restoration Act in the 1990s is no longer.  Michael Lieberman, director of the Civil Rights Policy Planning Center for the Anti-Defamation League, suggested a reason: that the coalition had intended RFRA to be a shield against government restrictions on the free exercise of religion, but that conservative groups had turned RFRA into a spear used to attack anti-discrimination laws.

One central principle of PFAW’s Twelve Rules for Mixing Religion and Politics became clear: while people can agree on the broad principle that religious liberty protects the freedom to live in accord with one’s religious beliefs, that consensus breaks down quickly when deciding how law and policy should react when religious liberty comes into tension with other constitutional principles like equality under the law. Indeed, panelists strongly (but civilly) disagreed on to what extent organizations – whether religiously affiliated institutions or business corporations – should be able to claim exemption from anti-discrimination laws or the HHS requirement for insurance coverage of contraception. 

Richard Foltin of the American Jewish Committee argued for a shades-of-gray, rather than a black-and-white approach, saying organizations should be viewed on a spectrum, with churches and sectarian institutions on one end and corporations at the other. Foltin said the AJC has submitted amicus briefs in favor of marriage equality at the Supreme Court, but also believes that there are significant religious liberty questions that courts will have to deal with as marriage equality is implemented.  (As noted at another point during the day, the states that now recognize marriage equality all have somewhat different religious exemptions.)

Michaelson proposes five tiers of organizations with differing levels of claims to religious liberty: churches/denominations; religious organizations; religiously affiliated organizations; religiously owned business, and religious individuals. The right-wing, he says, keeps trying to “move the sticks” from the first three groups to the latter two.  He notes that the Mormon Church owns extensive business interests, including shopping malls, and says that if business owners are allowed to claim exemption from anti-discrimination laws and other regulations based on religious belief, many employees will have their rights and interests restricted. 

Author Wendy Kaminer argued that the religious liberty of institutions is over-protected rather than threatened, saying that she believes some claims for religious liberty are actually demands for religious power to impose their beliefs on others.  If business owners are allowed to claim a religious exemption from generally applicable civil rights laws, she asked, what would be the limiting principle to such claims? Could business owners cite religious beliefs to ignore child labor laws, or to refuse to hire married women?  Kaminer challenged what she called an emerging legal double standard: when it comes to taking government funds, advocates say religious organizations need a level playing field and should be treated like every other organization. But when it comes to free exercise claims, and groups like Catholic Charities say they shouldn’t be subject to generally applicable laws, they don’t want a level playing field but special privileges.

Holly Hollman, general counsel of the Baptist Joint Committee for Religious Liberty, said that overblown rhetoric about threats to religious freedom is damaging to public understanding of religious liberty. She suggests that the first response to someone who talks about threats to religious liberty should be to ask them what specifically they are talking about.  For example, while people may be concerned when they hear about “an assault on religious liberty,” most Americans do not see a problem with requiring religiously affiliated institutions to abide by anti-discrimination laws or meet contraception requirements.

Legal scholar Jeffrey Rosen suggested that on church-state issues, the Supreme Court justices could be divided into three camps: religious supremacists, advocates of “religious neutrality,” and strict church-state separationists.  The separationists, he said, had their heyday in the 1970s and early 1980s, but that the courts have been moving more toward a “religious neutrality” approach, which he said in some cases is really a cover for the religious supremacists yearning for an openly religious state.  He said a landmark of the triumph of “neutrality” over separation was the 1995 Rosenberger case, in which the court said a public university could not deny funding from a religious publication because of its religious nature.  In the future, he said, Justices Breyer and Kagan may be willing to embrace a “religious neutrality” approach in hopes of winning votes to try to keep Robert and Kennedy from joining the Scalia-Thomas religious supremacists.

Mark Rienzi of the Becket Fund for Religious Liberty, which has filed lawsuits challenging the HHS mandate and which has urged the Supreme Court to uphold Prop 8 and DOMA, portrayed religious liberty issues not as part of a culture war but as the necessity in a pluralistic society of recognizing that differences exist and allowing everyone the maximum ability to live according to their beliefs. He suggested that most church-state conflicts are blown out of proportion and can be resolved relatively easy with a willingness to work around individual religious liberty claims. Kim Colby of the Christian Legal Society endorsed that view, and noted that the Supreme Court will likely be deciding cases in the near future about what constitutes a “substantial burden” on a person’s religious beliefs and what might qualify as a “compelling state interest” that would justify that burden.

Michaelson challenged Rienzi’s portrayal, saying that “religious liberty” itself has become a code word for a new tactic in the culture war against LGBT equality and reproductive rights, and that it was wrong to pretend there would be no victim if a business owner were granted the right, for example, to ignore laws against anti-gay discrimination.  Pharmacies, he said, used to have lunch counters that were segregated. Would it have been OK to justify that discrimination by saying there was another lunch counter down the street, the argument used by advocates for allowing pharmacists to refuse to provide some drugs based on their religious beliefs?

The ADL’s Lieberman said that from his perspective as an advocate for minority religions these do not seem like small or easily resolved issues, and said there was a clear prospect that individual rights would not be safeguarded if, for example, majoritarian school prayer were permitted.  Hoda Elshishtawy, legislative and policy analyst at the Muslim Public Affairs Council also noted the reality of a major power differential between members of majority and minority religions.  Dan Mach, director of the ACLU’s Program on Freedom of Religion and Belief, noted that there are widespread abuses in public schools, citing an example of a South Carolina public school that set aside a day explicitly intended to try to convert as many students as possible to Christianity.

Welton Gaddy of the Interfaith Alliance, who moderated the first panel, noted that even on the day the First Amendment was passed, not everyone agreed with it or agreed with what it meant. We’ve been working it out ever since then and can’t quit, he said.  Charles Haynes made a similar point in his closing remarks, noting that in spite of all the differences evident in how we apply First Amendment principles, the ability to continue having the conversation is a reminder of how well those principles have worked to protect religious liberty in an increasingly diverse nation.

PFAW

Advocate for Church-State Separation to Lead White House Faith Office

Good news out of the White House today for advocates of religious liberty and church-state separation: President Obama has selected Melissa Rogers as the new director of the Office of Faith-Based and Neighborhood Partnerships. She will also serve as a Special Assistant to the President.

Rogers is a widely respected scholar on religious freedom and an exceptionally thoughtful advocate for the position that the separation of church and state is a cornerstone of religious liberty. People For the American Way and PFAW Foundation have frequently worked in coalition with Rogers, particularly during her tenure as general counsel of the Baptist Joint Committee for Religious Liberty.  She is also a former director of the Pew Forum on Religion and Public Life and director of the Center for Religion and Public Affairs at Wake Forest University Divinity School.

Rogers was the first chair of President Obama’s Advisory Council on Faith-Based and Neighborhood Partnerships, and in 2011 she was appointed to a subgroup of the State Department’s Religion and Foreign Policy Working Group. Rogers steps into her new position at a time when the definition and scope of “religious liberty” are being strongly contested in the public arena, with conservative religious and legal groups using the term to challenge health care reform and push for broad exceptions to anti-discrimination laws.

In addition, Rogers will face ongoing questions about an issue left unaddressed during President Obama’s first term: the president’s campaign pledge to ensure that organizations using federal funds to carry out social services cannot discriminate with those funds in hiring staff.

“It’s hard to imagine anyone who could do a better job than Melissa Rogers at dealing with these challenges,” says People For’s Executive Vice President Marge Baker. “The American people need a thoughtful and convincing voice like Melissa’s to help us sort through the real religious liberty issues as well as the phony ones.”

PFAW