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.
In tomorrow’s State of the Union address, President Obama is expected to speak at length about growing income inequality in the United States, and his plans to address it. Any plan to address income inequality must also address the political inequality created by unrestrained spending on elections.
Income inequality affects not just individual lives, but our political system as a whole. In a series of cases beginning with the 1976 Buckley v. Valeo decision, the Supreme Court has struck down commonsense campaign finance regulations designed to limit private economic power from dominating campaigns for political office – and thus dominating our country’s political process. Since that time, the income share of the top one percent of income earners has almost tripled, growing at a substantially higher rate than the income of the rest of the population.
This mounting wealth disparity has not resulted simply from the good fortune of the hardest working or smartest among us; it has been assisted through government policy. The capital gains tax sits at 23.8% for top earners despite the vast majority of Americans believing that it should be equal to the rate at which income is taxed. Meanwhile, the federal minimum wage, whose real value has fallen about 30% since 1968, remains stagnant at $7.25 per hour, despite the fact that 71 percent of Americans want to see it increased; however, only 40 percent of the wealthiest Americans support such an increase.
As income inequality has ballooned, it has also become more difficult for even the most hard-working Americans to improve their economic prospects. State university systems that were once free are now approaching the cost of private institutions, while scholarships are going less often to benefit low-income students. Labor unions, which were instrumental in building the American middle class, are facing attacks from legislators backed by well-funded corporate interests.
Income inequality and political inequality go hand-in-hand. As This American Life has noted, the average member of Congress spends at least four hours a day calling wealthy individuals and organizations asking for money, a tally that does not even include the countless fundraisers they must attend. Average Americans don’t get these calls. They do not get the chance to meet with their representatives at intimate gatherings. Their voices go unheard.
The sad truth is that under our current system, time-intensive fundraising and the concessions that go along with it are necessary conditions for the ascension to political office in the United States. That is something we need to change if we are ever going to deal with income inequality or any of the other major problem facing our country.
That is why we here at People for the American Way Foundation are calling for “Money Out, Voters In” campaign and are working to pass a constitutional amendment that will allow our elected officials to work for all Americans, not just the wealthy few.
Last week, Young People For (YP4) – a youth leadership program of PFAW Foundation – celebrated Martin Luther King, Jr. Day by concluding its ninth annual National Summit for young progressive leaders. Over the span of four days, more than 130 YP4 Fellows went through extensive trainings, preparing them both for the community projects they will be leading this year and for life-long careers in the progressive movement.
From workshops on fundraising, communications, and coalition building to keynotes from civil rights leaders Phillip Agnew, Sofia Campos, and Lt. Dan Choi, Fellows left the Summit with the motivation and skills necessary to implement progressive change across the country. Many are already launching into projects to enroll peers in affordable health care, register young adults to vote, create leadership development programs for youth in their own communities, and more.
Concurrent with the National Summit, YP4 also celebrated the completion of its seventh annual Front Line Leaders Academy, a six month program providing those interested in greater civic participation the ability to learn from successful political campaign professionals. Nineteen Fellows received accreditation on a wide range of political skills – from designing a field campaign to effective public speaking – that they learned over the course of the program.
In 2012, over the protests of thousands of Pennsylvanians, forty five organizations, and every Democrat in the state legislature, Governor Tom Corbett signed into law one of the strictest voter ID requirements in the country. The Speaker of the Pennsylvania House acknowledged that he pushed the law to help Mitt Romney win the state.
This morning the two-year-old law was ruled unconstitutional. Pennsylvania Commonwealth Court Judge Bernard McGinley wrote that law was a “substantial threat” and that it would hinder the ability of many to vote freely.
In the ruling, Judge McGinley stated:
“Voting laws are designed to assure a free and fair election; the Voter ID Law does not further this goal.”
People For the American Way Foundation’s African American Ministers Leadership Council said of the law last year:
“The purpose of this law has been clear from the beginning. It was meant to keep African Americans, students, and other traditionally suppressed communities from exercising our hard-won right to vote. Even the law’s supporters have admitted that there is absolutely no evidence of in-person voter fraud in Pennsylvania. Instead, this law is a purely political attempt to disenfranchise citizens who have every right to vote. I am dismayed at today’s decision and hope that as this case moves through the courts, our judges recognize the ugly intent and real consequences of voter ID.”
In our continuing efforts to pass a constitutional amendment to overturn Citizens United and related cases and restore Government Of, By, and For the people, PFAW Foundation is helping coordinate the Students United For Democracy coalition – a group of student activists and good government groups working to raise awareness of our country’s money in politics problem and pass resolutions on college campuses calling for a constitutional amendment.
For far too long, students have been pushed to the margins of our political system. From rising education costs to uncertain environmental and economic futures, it is clear that government often fails to act in the interest of students and young people. As explained in PFAW Foundation’s report, “Students and the Movement to Amend the Constitution,” each of these issues is intricately connected to the role that big money plays in our political system. Rather than protecting the interests of all, public officials often look out for the interests of those who pay for their campaigns, and students – who are taking on record levels of student debt –students simply could not afford to “pay to play” even if they wanted to.
Yet the country and its young people are waking up. Sixteen states and 500 cities and towns have already passed resolutions calling for a constitutional amendment to overturn Citizens United and related cases. In 2014, student governments will be adding their voices to this nationwide call.
Today a federal judge found Oklahoma’s ban on marriages for same-sex couples to be unconstitutional. While this is great news, same-sex couples are not yet able to marry in the state because the decision is stayed – in other words, on hold – pending appeal.
As victories for marriage equality continue to stack up across the country, it is increasingly clear that the march toward full equality nationwide cannot be halted. Congratulations, Oklahoma!
It has been a roller-coaster few weeks for marriage equality in Utah, where a legal battle over the state’s ban on marriage for same-sex couples continues and more than a thousand marriages are caught in limbo.
On Friday People For the American Way Foundation Major Gifts Associate Tyler Hatch reacted to the struggle in Utah, and his op-ed was featured by CNN.
Regardless of the ultimate outcome of Kitchen v. Loving (Utah’s marriage equality case currently under review by the 10th Circuit) the issue of marriage equality is once again before the Mormon or LDS church.
I was raised LDS and went to church nearly every Sunday until I was 18. I participated in weekly youth meetings, attended Boy Scout outings, and was a leader within my church. By all accounts I appeared to be the model youth, however inside I was dejected. Severe depression, suicidal thoughts, and extreme self-loathing plagued my adolescent and teen years due to an overwhelming sense of guilt regarding my sexuality.
….Whether it is in the halls of elementary schools, the wedding chapel, or feeling secure and safe in the workplace there is much work to be done. LGBT equality is an issue that will surely grip our generation for years to come. As society becomes more accepting of LGBT individuals I remain optimistic that progress will be made, at least within civil society.
….There are no easy answers for the countless number of LGBT individuals with conservative religious backgrounds and the struggle to find an identity within that intersection is a fight that will continue throughout our lives.
The following is a guest post by South Dakota State Senator Angie Buhl O’Donnell, a member of People For the American Way Foundation’s Young Elected Officials Network.
Harvey Milk’s words inspired audiences throughout his life, but his most enduring words may have been the simple push to “come out, come out wherever you are.”
To me, that’s the most important legacy of the political leader we lost 35 years ago this week – his insistence on the far-reaching impact of the very personal act of coming out. Despite the potential downsides, despite the fact that it can feel easier not to come out, Harvey Milk knew that our community must be visible in order to make legal and social equality a reality.
While Milk spent much of his life in urban centers, I believe the urgency to make ourselves visible is even greater in places like South Dakota, where I live. It’s 2013, but some people still think LGBT people only exist in New York or San Francisco. As researcher Mary Gray has written, popular representations of rural LGBT people paint us as “out of place” in states like South Dakota – as people who need to “seek out belonging in an urban elsewhere to find happiness.” But LGBT people are in every part of our country, and we are increasingly visible in the political landscape.
Milk’s legacy has been a personal inspiration for me, as an openly bisexual elected official. Earlier this year, I became a Harvey Milk Champion of Change. While I was honored to be recognized by the White House with an award bearing his name, I actually had some hesitation about accepting. As a bisexual woman married to a man, I was worried about people thinking I didn’t really “deserve” it. But I realized that line of reasoning was not what Harvey Milk would have embraced. His legacy is about sharing your own identity, your own truth in whatever form that might take. Besides, there’s a “B” in “LGBT” for a reason.
On Wednesday, Senator Elizabeth Warren co-sponsored Senator Udall’s amendment proposal, SJRES 19, adding a key progressive voice to the amendment movement. With Warren’s endorsement, the entire Massachusetts’s congressional delegation is now in support of amending the Constitution to overturn Citizens United and related cases.
In a speech two months ago, Senator Warren decried the overwhelming influence of money in politics and noted that “Congress needs power to address all of the ways in which corruption threatens the health of our political system.” That notion – that Congress and the states should have the constitutional authority to protect the integrity of the legislative and electoral processes – is at the heart of what the Udall proposal does.
To date, 16 states, 500 cities/towns, and over 150 members of Congress have called for a constitutional amendment. To learn more about the amendment movement, visit: www.united4thepeople.org.
The following is a guest post by Campbell, California Mayor Evan Low, a member of People For the American Way Foundation’s Young Elected Officials Network.
In 2009, I became the youngest openly gay mayor as well as the youngest Asian-American mayor in the country. Some journalists wrote about how I was making history, but I like to point out that I was preceded by a number of other courageous “firsts.”
I became mayor 35 years after Kathy Kozachenko was the first openly LGBT person elected to public office, and 32 years after Harvey Milk – affectionately known as “the mayor of Castro Street” – was elected to the San Francisco Board of Supervisors in the same state I serve today.
This week marks the anniversary of the tragic end of Milk’s short time in office, when he and Mayor George Moscone were shot and killed by Supervisor Dan White. But the legacy of Harvey Milk and other LGBT trailblazers is very much alive. Today there are more than 500 openly LGBT elected or appointed officials serving our country. Through their service and that of public officials representing other marginalized communities, it is clear that our democracy works best when our lawmakers reflect the nation’s diversity.
That’s not to say that things are always easy for LGBT elected officials. Like Milk, I have received my share of hate mail, with messages like: “We don’t want the homosexual agenda in our community.” As I have told reporters before, I don’t know what is on that so-called agenda, other than basic equality for all people.
One issue that’s certainly on my agenda is the end of the FDA’s ban on blood donations from gay and bisexual men. In a petition that now has more than 62,000 supporters, I wrote:
…recently, I hosted a blood drive on city property, but was banned from donating blood myself.
As the mayor of Campbell, providing for the welfare of the general public is a top priority. As a gay man, however, I am conflicted in my advocacy for blood drives. Under current U.S. Food and Drug Administration guidelines, a man who has sex with another man is deferred for life from donating blood. The ban was imposed in 1983 when there were no reliable tests for screening blood for HIV/AIDS. It was also made during a time of mass medical confusion and cultural homophobia associated with HIV/AIDS. The current FDA ban is wildly outdated and perpetuates unfair labels against gay and bisexual men that live on through decades of discrimination.
These kinds of stereotypes are not unlike the ones Harvey Milk was fighting nearly four decades ago, and why he, like I do today, encouraged LGBT people to come out whenever possible – to dispel the harmful lies about our community with the truth. Stuart Milk, nephew of Harvey Milk and founder of the Harvey Milk Foundation, continues his uncle's legacy, and we are so fortunate to have Stuart carry the torch.
In a tape Milk recorded before his death, he said, “I have never considered myself a candidate. I have always considered myself part of a movement.” I think he would be proud of the movement that lives on in his spirit today.
When the teaching of Isabel Allende’s internationally renowned novel The House of the Spirits was challenged in a North Carolina school district last month, advocates from all corners spoke out in its defense, including PFAW Foundation president Michael Keegan and North Carolina Poet Laureate Joseph Bathanti. Now, Isabel Allende herself has joined the conversation.
Yesterday the School Library Journal reported that Allende has mailed a letter, along with copies of her book, to the Watauga County school board, superintendent, and the principal of Watauga High School.
After acknowledging that being in the position of defending her own book is “unusual and awkward,” Allende points out in her letter that The House of the Spirits is “considered a classic of Latin American literature and it is taught in high schools, colleges, and universities in all Western countries, including the USA for more than two decades.” She expresses concern about the practice of book censorship in general:
Banning of books is a common practice in police states, like Cuba or North Korea, and by religious fundamentalist groups like the Taliban, but I did not expect it in our democracy.
Allende’s letter comes as the book undergoes a multi-step review process in the county. Last month an advisory committee comprised of teachers, students, and parents voted unanimously not to remove the book from the curriculum, but that decision has been appealed.
Barbara “Bobbie” Handman, a former Vice President of PFAW and PFAW Foundation, died on Thursday. For years, Bobbie’s creative energy and fierce commitment to the First Amendment shaped the organizations’ free expression work from New York City, where she was based. Bobbie’s long record of advocacy for free expression and the arts was recognized in 1998 when she received the National Medal of Arts from President Bill Clinton.
Bobbie’s years at PFAW were part of a long life of political activism. Time after time she responded to would-be censors by rallying well-known actors and writers to participate in public events that affirmed the value of artistic freedom. You can read more about Bobbie’s life and work in the obituary that appears in today’s New York Times. It ends with this quote from Norman Lear: “Bobbie was a lifelong lesson in perseverance. She made New York happen for People For the American Way. And she made everything grander. She dealt in grand.”
People For the American Way extends its heartfelt condolences to Bobbie’s husband Wynn Handman and the rest of their family.
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.
Last month, PFAW Foundation sent a letter to a school district review committee in Alamogordo, New Mexico urging them to reject attempts to remove Neil Gaiman’s Neverwhere from the English curriculum. Yesterday a local television station, KRQE News 13, reported that the book will indeed be put back into the Alamogordo High School curriculum. A district spokesperson told the School Library Journal that in the review process the book was found to be “educationally suitable, balanced, and age-appropriate for high school students.”
The School Library Journal’s Karyn Peterson provides the backstory:
Use of the novel, which had been a part of the AHS English department’s curriculum for nearly 10 years, was suspended from classrooms in early October after a mother complained to the school board about what she characterized as the book’s “sexual innuendos” and “harsh” language—occurring on a single page of the 400-page novel. The district then created a review committee and opened a public comment period...
PFAW Foundation was one of the groups that weighed in, encouraging the review committee to uphold the right of all students to “to receive a competitive, rigorous education free from censorship.”
The full text of our letter is below.
October 25, 2013
Dear Members of the Review Committee,
We urge you to reject attempts to remove Neil Gaiman’s Neverwhere from the English curriculum. We understand that the novel was temporarily removed from the curriculum following the complaint of a parent and will be reviewed by this committee.
Neil Gaiman, whose awards include the Newbery Medal for outstanding children’s literature, is an acclaimed author whose work has been taught in the district for many years. We recognize that school leaders often face difficult decisions that require balancing the concerns of parents with the educational development of students. However, according to English teacher Pam Thorp’s recent letter in the Alamogordo News, the child of the parent bringing the complaint was offered alternative reading material. While parents have every right to decline reading material for their own children, they should not be allowed to censor the curricula for all students.
Many works of literature tackle mature or challenging topics. Attempting to shield high school students from challenging works robs them of the opportunity to learn from and engage with literature, and sets a dangerous precedent.
We trust that as educators you will uphold the right of all students in Alamogordo public schools to receive a competitive, rigorous education free from censorship. For over 30 years we have worked with school districts to protect students’ right to learn, and are happy to serve as a resource for you in this and any future challenges to school curricula.
President, People For the American Way Foundation