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“No Constitutional Freedom Is Limitless”: Companies Are Not Churches, And Must Conform To Modern Laws

What do contraceptives have to do with religion?

As a liberal Protestant, I see no connection — but that’s beside the point. There are plenty of sincere Catholics and conservative Protestants who believe the use of contraceptives, or at least some types of them, is sinful. That’s reason enough to be careful about any broad government regulations involving birth control.

Religious liberty is a cornerstone of the American way of life, a fundamental principle of the U.S. Constitution. The Founding Fathers were close enough to the bloody religious wars in Europe to try to found a country safe for pluralism, respectful of all religions while requiring none. If there is any such thing as American exceptionalism, freedom of religion is certainly one of its hallmarks.

Still, no Constitutional freedom is limitless. For more than a century, jurists have restricted religious liberties when they interfered with other important values. The Supreme Court did so as early as 1879, when it ruled against polygamy, practiced by some Mormons at the time.

That’s why the U.S. Supreme Court ought to rule against two corporations whose owners are fighting the requirement — a tenet of Obamacare — that employers’ health insurance plans pay for birth control. If businesses are given an exemption from a valid law that serves a useful public purpose because they claim it violates religious beliefs, where would it end?

(I’m leaving it to others to argue the perfectly valid point that corporations don’t have religious beliefs. They are not people. How many corporations have you ever seen sitting in the pews on Sunday?)

There are plenty of businesses and institutions that believe they have the right to fire gays and lesbians because homosexuality violates their religious beliefs. Some religious groups would keep outdated practices toward women, banning them from most high-powered jobs. While many people genuinely believe their God requires that, our civil society puts a premium on promoting equality.

If the two values are in conflict, individuals’ right to equality ought to win out. In a 1993 religious liberties case involving the use of peyote, Justice Antonin Scalia, himself a hyper-conservative Catholic, quoted from an earlier case when he wrote for the majority: “Can a man excuse his practices … because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

The case involving contraception is no different. The government has an overriding interest in ensuring that women’s health care is treated no differently from men’s, and reproductive services are vital. (As President Obama has noted, if men could have babies, contraception would already be a standard provision of all health insurance policies.)

For the record, laws have long been necessary to require health insurers to pay for certain procedures and pharmaceuticals. For example, the Georgia Legislature insisted in that 1990s that insurers pay for breast cancer screenings, which has helped to improve survival rates.

Since contraceptive use would help prevent abortions, religious conservatives ought to be among the most enthusiastic proponents of birth control coverage in health insurance. But one of the companies that opposes the law — Hobby Lobby, a chain of craft-supply stores — is owned by Southern Baptists who believe some forms of birth control, such as intrauterine devices, are tantamount to abortion. The other company involved in the Supreme Court case, Conestoga Wood Specialties, is owned by Mennonites who don’t believe in birth control of any sort.

The Obama administration has rightly compromised over religious objections to birth control mandates, exempting churches and other religious institutions. But corporations are not churches, no matter who owns them. Hobby Lobby and Conestoga Wood should be required to abide by the laws of a modern state.

Otherwise, where would this end? Bigotry operating under the auspices of the Bible could once again become the law of the land.

 

By: Cynthia Tucker, The National Memo, March 29, 2014

March 30, 2014 Posted by | Contraception, Religious Liberty | , , , , , , , | Leave a comment

“A Blatant Violation Of Civil Rights”: When ‘Religious Liberty’ Was Used To Deny All Health Care To Women And Not Just Birth Control

On Tuesday, the Supreme Court will hear Hobby Lobby’s and Conestoga Wood Specialties’ claims that they should be exempt from their legal obligations to provide a full range of health coverage — in this case, contraceptive care for women — because they object to providing this coverage on religious grounds. Yet, for women who worked for a California private school in the 1980s, this lawsuit must feel like déjà vu. Nearly three decades ago, the Fremont Christian School claimed a similar right to deny health coverage to its female employees, citing its religious beliefs as justification for doing so. Fremont Christian’s case does bear one important difference from Hobby Lobby’s, however, they did not just want to deny birth control to their employees — they wanted to deny all health coverage to many of the women in their employ.

Fremont was owned by a church which claimed that “in any marriage, the husband is the head of the household and is required to provide for that household.” Because of this belief, they had a very unusual compensation package for their employees — though Fremont offered a health plan to its workers, the plan was only available to “heads of households” which Fremont interpreted to mean single people or married men. When a woman became married, she was to rely on her husband for health care.

(In what Fremont described as an “act of Christian charity,” there was an exemption to this rule. A married woman could receive health benefits if “the husband is incapable of providing for his family, by virtue of non-working student status, or illness” though the school also emphasized that “the husband is still scripturally the head of the household.”)

Offering one set of employee benefits to men and a different, inferior package to women is a blatant violation of federal civil rights law, which prohibits employers from “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” While Fremont claimed that their religious liberty gave them a trump card, a federal appeals court disagreed. “Congress’ purpose to end discrimination,” the court explained, “is equally if not more compelling than other interests that have been held to justify legislation that burdened the exercise of religious convictions.”

So could a victory for Hobby Lobby and Conestoga Wood cause the courts to rethink Fremont Christian? Probably not. Society’s compelling interest in eradicating discrimination against women is widely accepted, even by conservative judges, and Fremont Christian is an extreme case. Nevertheless there is reason to be concerned about what happens with religious employers who push the envelope only slightly less than Fremont Christian School did.

The Supreme Court has long recognized that the “First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.” But a decision in Hobby Lobby and Conestoga Wood’s favor would place courts in the awkward position of picking and choosing among religious faiths. What happens to sects of the Jehovah’s Witness faith, who have religious objections to blood transfusions? Or to faiths that object to certain vaccines? Or to Scientologists who object to psychiatry? Or to Christian Scientists who object to modern medical science altogether?

If Hobby Lobby wins, are these faiths now empowered to deny health coverage to their employees as well? And if not, why not? If the Court rules in Hobby Lobby’s favor, it will either need to abandon its longstanding neutrality among religions, or it will need to allow every sect to exempt itself from health coverage laws that it does not want to follow — including, potentially, sects like the one in Fremont Christian. Moreover, Hobby Lobby’s brief argues that any law burdening an employer’s religious exercise must survive “the most demanding test known to constitutional law.” That is not a good position to be in if your employer objects to blood transfusions or mental health care.

Although there is a superficial basis for Hobby Lobby’s argument, they are asking the Court for a massive shift in the law. For decades, the Supreme Court has respected the principle that one person’s religious liberty stops at another person’s body — and this is especially true in the business context. As the Court explained in United States v. Lee, “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” If the law were otherwise, Lee warned, employers could “impose” their “religious faith on [their] employees.”

Any decision favoring Hobby Lobby and Conestoga Wood will have to drive a massive hole through Lee. The essence of both businesses claims is that they should not have to follow the same health care laws that apply to all other businesses, and that employers should be able to limit their employees’ ability to obtain contraception because the employer objects to its use. But once Lee falls, it is not at all clear what rises in its place, or how easily courts are going to be able to draw a distinction between relatively narrow claims like Hobby Lobby’s and sweeping attempts to deny health care like Fremont Christian’s — not to mention the many grey areas in between.

 

By: Ian Millhiser, Think Progress, March 23, 2014

March 24, 2014 Posted by | Civil Rights, Discrimination, Women's Health | , , , , , , , | Leave a comment

“Religion Is No Excuse for Bigotry Against Women”: Corporations Have No Soul, And They Certainly Don’t Have A Relationship With God

This Tuesday, the U.S. Supreme Court will hear arguments in two consolidated cases, Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius, on the government’s authority to require employers to provide health care coverage that includes birth control and other pregnancy-related services under the Affordable Care Act.

The owners of two for-profit corporations, Hobby Lobby Stores and Conestoga Wood Specialties Corp., claim their Christian religious beliefs justify withholding contraception coverage from their employees, never mind what their employees believe.

Hobby Lobby and Conestoga Wood Specialities are not the only employers seeking the legal right to restrict their women employees’ access to birth control. Some 100 companies or nonprofit organizations — NOW calls them the Dirty 100 — have sued the United States Government for that same power.

Two issues raised by these lawsuits are receiving a lot of attention: First, can a corporation claim religious freedom under the First Amendment? Second, can a corporation block its employees from at least some forms of contraception on the grounds they are abortifacients? I’ll comment on those in a moment, but first I want to pause over a third issue: Can a corporation use its supposed Christian religion to justify discriminating against its women employees?

I want to propose that we lay to rest, once and for all, the tired old I’m-a-bigot-because-God-wants-it argument. Think about it. Proponents of discrimination have routinely used religion to justify their hurtful policies: two shameful examples are slavery in the United States and segregation in the Deep South.

More recently, religious claims were the driving force behind California’s Proposition 8, which sought to prohibit same-sex marriages. But these arguments have been thoroughly discredited. We have progressed as a society to the point where the use of religion to justify excluding, demeaning or discriminating against whole groups of people is roundly condemned, and rightly so. The idea of Hobby Lobby Stores, Conestoga Wood, or any of the Dirty 100 using religion as an excuse to block women’s access to birth control should be no less condemned.

As to whether Hobby Lobby Stores or Conestoga Wood can claim religious freedom SCOTUSblog summarized what’s at stake.

At the level of their greatest potential, the two cases raise the profound cultural question of whether a private, profit-making business organized as a corporation can “exercise” religion and, if it can, how far that is protected from government interference. The question can arise — and does, in these cases — under either the First Amendment’s Free Exercise Clause or under a federal law, the Religious Freedom Restoration Act, passed by Congress in 1993.

In a manner of speaking, these issues pose the question — a topic of energetic debate in current American political and social discourse — of whether corporations are “people.” The First Amendment protects the rights “of the people,” and the 1993 law protects the religious rights of “persons.” Do profit-making companies qualify as either?

As an aside, I have to wonder, if the Supreme Court decides that a corporation is a “person” with religious freedom under the First Amendment, where might that leave the status of women as “persons” with the right to equal protection of the law under the Fourteenth Amendment? In any event, Caroline Mala Corbin, a law professor at the University of Miami, succinctly rejected the idea of corporations as having the capacity for religious belief. As she said, “For-profit corporations do not and should not have religious rights. They have no soul, and they certainly don’t have a relationship with God.”

So, what about the claim that Hobby Lobby Stores and others in the Dirty 100 are making, that some forms of contraception are actually abortifacients? Two summaries by the National Partnership for Women & Families (here and here) are worth reading, and I’d be interested to know if you have the same reaction that I did when I read them.

These arguments would be laughable if the men running the Dirty 100 entities weren’t so deadly serious about blocking women’s access to life-saving health care. Because that’s what contraception is: life-saving. Unintended pregnancy is highly associated with infant and maternal mortality. Unintended pregnancy is also a significant risk factor for domestic violence.

So when these guys start saying that they have to, just have to, block women’s access to safe and effective contraception because they’re worried about the “lives” of the zygotes, I want to say: Seriously?

You are going to claim to be pro-life but ignore infant mortality? And maternal mortality? You are going to claim to be confused and worried about the fertilized egg, and the implantation, and the uterine wall, but ignore the intimate partner violence that accompanies unintended pregnancy? What business do you have talking about women’s bodies — as if we are not in the room — in the same way one might talk about, say, whether robots are more like androids or more like appliances? Seriously.

Let’s review some facts. Some 99 percent of sexually active women, including 98 percent of sexually active Catholic women, use contraception at some point. According to the National Partnership, an estimated 17.4 million women need subsidized services and supplies because they are unable to access or purchase contraceptive services and supplies on their own. And more than half of young adult women say cost concerns have led them to not use their birth control method as directed.

The Guttmacher Institute has found that about half (51 percent) of the 6.6 million pregnancies in the United States each year (3.4 million) are unintended. What’s more, the 19 percent of women at risk who use contraception inconsistently or incorrectly account for 43 percent of all unintended pregnancies.

Yet, in the face of these facts, Hobby Lobby and the others in the Dirty 100 want to restrict women’s access to this essential preventive care because of the claim that “zygotes are people too.”

If that’s the best they can do, they should surely lose this appeal. Of course, the case is before Chief Justice John Robert’s Supreme Court, which ushered in the era of corporations as people with the Citizens United case, and is widely considered the most politically active since the earliest days of our republic. So never say never. But whatever the Supreme Court does, I know what I’m not going to do: give my business or my money to Hobby Lobby or any of the other Dirty 100 that practice similar gender bigotry.

You can take action too: Click here to sign our petition telling them their bias is not acceptable.

 

By: Terry O’Neil, President, National Organization for Women; The Blog,  The Huffington Post, March 21, 2014

March 23, 2014 Posted by | Contraception, SCOTUS, Women's Health | , , , , , , | Leave a comment

“An Assault Upon The Very Notion Of Secular Law”: Corporate Owner’s Religious Beliefs Stop At Their Employees’ Doctors’ Offices

The Hobby Lobby case, which the Supreme Court agreed last month to hear, shouldn’t only scare you if you’re a woman concerned about reproductive rights. It should scare you if you’re an American concerned about civil rights and the very principle of secular law. The Hobby Lobby case threatens to extend corporate personhood to allowing companies to force employers’ religious beliefs onto individual employees, deny them health care, and opt out of laws they don’t like.

Last week, the Supreme Court agreed to hear two cases – Hobby Lobby Stores Inc. v. Sebelius and Conestoga Wood Specialties Corp. v. Sebelius – challenging the Affordable Care Act’s requirement that employer-provided health plans included birth control coverage. Previous court rulings have been all over the map, including one in Hobby Lobby’s favor from the shorthanded 10th Circuit here in Denver.

The companies object to certain forms of birth control because the “religious beliefs” of their owners forbid them from covering contraceptives that prevent implantation of a fertilized egg and thus in their minds are “abortifacients.”

Unfortunately for their women employees, the companies’ “science” is in line with those who think people and dinosaurs walked the earth at the same time. According to a friend of the court brief filed in the Hobby Lobby case by Physicians for Reproductive Health, the companies “fail to cite any scientific authority for their assertions that any FDA-approved contraceptives are abortifacients … there is no scientific evidence that emergency contraceptives available in the United States and approved by the FDA effect an existing pregnancy. None, therefore are properly classified as abortifacients.”

Pregnancy itself is a complicated concept, as is the science of contraception. According to Jessica Arons of the Reproductive Health Technology Project, “Contrary to popular belief, pregnancy does not occur in a ‘moment’ of conception within hours of intercourse, but rather over a span of several days. An embryo can be present in a woman’s body for up to 9 days before she becomes pregnant.” Approximately 50 percent of fertilized eggs never implant, so Mother Nature is a pretty thorough abortionist by Hobby Lobby’s definition.

Also worth noting: the employer birth control coverage mandate didn’t come from the Obama administration. Most of it has been law well over a decade. According to Mother Jones:

In December 2000, the Equal Employment Opportunity Commission ruled that companies that provided prescription drugs to their employees but didn’t provide birth control were in violation of Title VII of the 1964 Civil Rights Act, which prevents discrimination on the basis of sex. That opinion, which the George W. Bush administration did nothing to alter or withdraw when it took office the next month, is still in effect today.

The difference now is that contraceptive coverage falls under the umbrella of the Affordable Care Act, and is covered with no or little out of pocket costs.

Hobby Lobby and Conestoga Wood aren’t individuals or churches. They are corporations. Nobody is stopping them from practicing their religion or forcing them to use the pill or get an IUD. But their religious beliefs do not entitle them to make those decisions for their employees – their beliefs stop at their employees’ doctors’ offices. None of these personal, private health care decisions by workers are any of Hobby Lobby’s damn business.

What if these companies decided they didn’t want to cover AIDS drugs? Or plans that included blood transfusions? Or that their religion forbade them hiring different races or abiding by wage and hour guidelines? Where does it stop?

This is why these two cases are so dangerous: if a company can invoke religion to exempt itself from a law it doesn’t like, it destroys the very notion of secular law. And it turns employees into chattel whose personal, private health care decisions are owned by their employer.

 

By: Laura Chapin, U. S. News and World Report, December 6, 2013

 

December 7, 2013 Posted by | Birth Control, Civil Rights, Contraception | , , , , , , | Leave a comment

“Worshiping The Almighty Dollar”: Will The Supreme Court Endow Corporations With A Soul, Too?

Private businesses are trying to block Obamacare on religious grounds? What do companies worship besides, perhaps, the almighty dollar?

That’s the question at the heart of two conflicting rulings from lower courts that the Supreme Court has decided to take up in its second constitutional showdown over President Barack Obama’s Affordable Care Act.

Since the law also known as Obamacare was passed, dozens of Christian employers have challenged its birth-control mandate that requires employers to provide health insurance coverage for FDA-approved contraception.

Abortion rights opponents believe some of the allowed contraceptive methods block fertilized eggs from implanting in a woman’s uterus. That’s disputed by other research findings that the methods in question actually work before fertilization occurs.

To placate such objections, the Obama administration has changed the requirement to allow explicitly religious organizations and some other nonprofits to opt out of paying for insurance directly, passing the costs on to their insurance provider instead.

But that doesn’t apply to the big for-profit corporations at issue in the two cases that the Supreme Court has agreed to hear.

In one of them, the 10th Circuit Court upheld the argument of Oklahoma City-based Hobby Lobby Stores Inc., a chain of 500 arts-and-crafts stores with 13,000 full-time employees, that the mandate would violate the rights of owners David and Barbara Green under the Religious Freedom Restoration Act of 1993. That law says that a “person” can seek to opt out of a law under some circumstances if obeying it would “substantially burden” the exercise of his or her religion.

But is a corporation a “person?” Yes, says the 10th Circuit, under the Citizens United decision, which holds that corporations have the same First Amendment rights as individual people to spend money as a form of speech in political campaigns.

Not so, says the 3rd Circuit Court of Appeals, in the second of the two decisions the justices will review. In rejecting the arguments of Conestoga Wood Specialties, a Pennsylvania manufacturer of wooden cabinets owned by a Mennonite family, the appeals court wrote that corporations “do not pray, worship, observe sacraments or take other religiously motivated actions separate and apart from the intention and direction of their individual actors.”

That sounds right to me. Even if the corporations qualified as “persons” under the 1993 law, which I am sure would surprise many of those who voted for it, the law cites a “substantial burden” on the exercise of religion.

If any “burden” is imposed on the employers in these cases, it hardly can be called “substantial” any more than the burden government routinely imposes on taxpayers to fund overseas wars or domestic social programs to which they personally object.

But if the high court grants corporations a religious license to pick and choose whichever government rules they want to follow or taxes they want to pay, a substantial burden would be imposed on the ability of the health care law to work — which would be just fine with some of its critics.

The impact of such a decision would reach far beyond Obamacare. That’s why the Supreme Court has drawn boundaries around the First Amendment’s “free exercise of religion” clause since its ruling in the 1878 test case of the bigamy conviction of George Reynolds, the personal secretary to Mormon leader Brigham Young.

Reynolds contended that his bigamy conviction violated his First Amendment rights as a member of the Church of Jesus Christ of Latter-Day Saints, which would not renounce bigamy until 1890. He lost, mainly because of legal reasoning drawn partly from a letter by Thomas Jefferson in which he drew a sharp distinction between religious belief and religiously motivated actions.

Because belief “lies solely between man and his God,” Jefferson wrote, “the legislative powers of the government reach actions only, and not opinions.” In that spirit, the Supreme Court’ wrote, “Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice?”

One hopes not. Government should not intrude on religious faith, but for the sake of the common good, it occasionally must intervene in acts that are motivated by religious belief.

 

By: Clarence Page, The National Memo, December 2, 2013

December 3, 2013 Posted by | Affordable Care Act, Contraception, Corporations | , , , , , , | Leave a comment

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