“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
“The ‘Wingnut Hole’ Measured”: 5 Million Without Insurance Thanks To GOP Refusal
Because of the decision on Obamacare by the Supreme Court, which left the decision to expand Medicaid (a key part of Obamacare) up to the individual states, most Republican-controlled states refused said expansion, leaving substantial portions of the citizenry in the lurch.
Ed Kilgore has been calling this the “wingnut hole,” and many have been speculating about its size. How many Americans will go without health insurance simply because the GOP dislikes the president? Well, happy 2014, dear readers: initial estimates are in, and we have 5 million lucky winners!
About 5 million people will be without health care next year that they would have gotten simply if they lived somewhere else in America. . . . The court effectively left it up to states to decide whether to open Medicaid, the federal-state program for the poor and disabled, to more people, primarily poor working adults without children. . . .
Twenty-five states declined. That leaves 4.8 million people in those states without the health care coverage that their peers elsewhere are getting through the expansion of Medicaid, according to a Kaiser Family Foundation estimate. More than one-fifth of them live in Texas alone, Kaiser’s analysis found.
That’s approximately the combined population of Delaware, Vermont, the District of Columbia, North Dakota, South Dakota, Wyoming and Alaska. Or alternatively, either Alabama, South Carolina, Colorado or the whole of Norway alone.
The Supreme Court decision was doubly unfortunate, because Republican states tend to be poorer than average and contain a disproportionate number of potential beneficiaries who are losing out. Obamacare, by virtue of distributing benefits downward, was aimed at those very people; it never occurred to the law’s architects that the vagaries of politics and law might give states a way out, and so they didn’t design a backup coverage mechanism.
Some refusenik states, like Iowa, might go forward with an Obamacare-instead-of-Medicaid expansion, but most probably will do nothing. Prospects are bad enough that health-care industry groups have basically given up trying to push through the expansion by lobbying and are just biding their time until conditions are more favorable.
It’s worth remembering that the federal government will pay 100 percent of the cost of the Medicaid expansion through 2016 and 90 percent of the cost afterward. It could very well work out that refusenik states will not even save money because of additional spending on the uninsured in emergency rooms and elsewhere.
But regardless of the pitiful sums involved, make no mistake: This action is utterly gratuitous. Combined with the probable coming Republican refusal to extend unemployment benefits that George wrote about this morning, this is a particularly stiff kick in the teeth to the United States’ most vulnerable citizens to usher in the new year.
By: Ryan Cooper, The Plum Line, The Washington Post, December 31, 2013
“The RNC Reflects On Ending Racism”: The Republican Party No Longer Qualifies For The Benefit Of The Doubt
For all of its many benefits, Twitter’s brevity can cause trouble for plenty of political voices. Yesterday, for example, the Republican National Committee decided to honor the anniversary of Rosa Parks’ “bold stand,” which seemed like a perfectly nice gesture. The RNC added, however, that Parks played a role “in ending racism.”
Not surprisingly, the message was not well received. Despite what you may have heard from Supreme Court conservatives in the Voting Rights Act case, racism hasn’t ended, it certainly wasn’t vanquished on a bus in Montgomery, Alabama, in 1955.
A few hours later, realizing that they’d made a mess of things, RNC officials returned to Twitter to say, “Previous tweet should have read ‘Today we remember Rosa Parks’ bold stand and her role in fighting to end racism,’” which was a welcome clarification, though the damage was done.
In fairness to the Republican National Committee, it’s hard to believe the party was trying to be deliberately offensive. For that matter, I rather doubt the RNC believes Rosa Parks helped end racism 58 years ago. This was likely the result of clumsy tweeting, not ignorant malice.
But in the larger context, stories like these resonate because the party no longer qualifies for the benefit of the doubt. Too many incidents come quickly to mind: the Nevada Republican who’d embrace slavery, the North Carolina Republican whose appearance on “The Daily Show” became the stuff of legend, the birthers, the fondness for Jesse Helms, the widespread voter-suppression laws that disproportionately affect African Americans, the Maine Republican who wants the NAACP to kiss his butt, the former half-term Alaska governor who’s comfortable with “shuck and jive” rhetoric, etc.
The RNC, in other words, can’t lean on its credibility on racial issues to easily dismiss poorly worded tweets. The fact that the party can’t even say a nice thing about Rosa Parks without screwing up and getting itself in trouble only helps reinforce the extent to which race is a systemic problem for the party.
By: Steve Benen, The Maddow Blog, December 2, 2013
“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
“Demanding The Right To Oppress”: Is Forced Religious Belief Coming To An Employer Near You?
The Supreme Court just can’t seem to quit the Affordable Care Act.
On Tuesday, it announced it would hear challenges to the law’s “contraception mandate,” which requires employers that provide health insurance to include contraceptives in their plans, including birth control pills and emergency contraception. At stake is whether for-profit companies can be exempted from the mandate because of their owner’s religious beliefs.
This controversy centers on a lawsuit by Hobby Lobby, an arts & crafts chain whose owners—David Green and his family—are devout Christians who believe life begins at conception and that using certain kinds of birth control violates their religious beliefs.
Obamacare contains an exemption for churches and other religious nonprofits, but the Greens want it extended to for-profit companies like their own, who are otherwise required to include FDA-approved contraceptives in their health insurance plans. They claim that the requirement would “substantially burden” their ability to practice their religion.
This gets to the core of the lawsuit. Hobby Lobby isn’t just fighting for an exemption from the contraception mandate, it’s arguing that, as a business, it shares in its owners religious beliefs and has its rights as a corporate person protected under the Religious Freedom Restoration Act, a 1993 law mandating that strict scrutiny be used when determining if the free exercise clause of the First Amendment has been violated. By requiring companies to cover women’s contraception, Hobby Lobby argues, the federal government is violating their religious rights. In short, the Greens are asking the court to classify for-profit corporations as having religious consciences.
It should be said that the Greens aren’t Catholics; they’re evangelical Christians who don’t share Catholicism’s doctrinal opposition to birth control. Condoms and diaphragms aren’t an issue. Instead, the Greens—who see fertilized eggs as persons—object to Plan B and other forms of emergency contraception, which they believe prevent embryo implantation in a woman’s womb, and are tantamount to abortion.
But medical science is clear: emergency contraception is not an abortifacient. As explained in an amicus brief by Physicians for Reproductive Health, pregnancy begins when a fertilized egg attaches itself to the uterine lining, a process that occurs within five to nine days of sexual intercourse, if the egg is fertilized. “Emergency contraception,” notes the organization, “refers to a drug or device that is used after intercourse, but before pregnancy, to prevent pregnancy from occurring.” Abortifacients, by contrast, are used to terminate an existing pregnancy.
According to the brief, the two FDA-approved forms of emergency contraception—Plan B and “ella”—work by preventing, disrupting, or prohibiting ovulation, which stops fertilization altogether. In the doses approved for contraceptive use, neither terminates a pregnancy.
This is important. For Catholic groups, who oppose all contraception regardless of circumstance, the science is irrelevant. The mechanism of birth control is less important than the theological commitment to all pregnancies. But evangelicals—like the Greens—are in a different boat. Their objection depends on the science of pregnancy. If what’s true—emergency contraception doesn’t cause abortion—contradicts their beliefs, then what basis do they have for the objection? It’s fine if the Greens oppose abortion out of their sincere religious convictions—they can believe whatever they want—but that doesn’t give them license to redefine abortion (or contraception) to fit those beliefs.
Indeed, allowing them the privilege opens the door to a whole host of actions that would burden the liberty—religious or otherwise—of employees or customers. In a world where corporations have First Amendment protections for their religious beliefs, can they win exemptions for any law they disagree with? If Congress passes the Employee Non-Discrimination Act, can Hobby Lobby decline to follow its dictates—and say, refuse to hire to gays and lesbians—out of its sincere religious beliefs? Could it refuse to hire blacks out of a belief that they are cursed by God?
This is all on top of the implications for employees. If you work at Hobby Lobby, could the company require you to attend Bible study? What if your employer is a Christian Scientist? Could they refuse to provide health insurance at all, citing their religious beliefs? These become real scenarios if the Court decides that belief trumps all other considerations, including actual fact.
Over the last few years, corporations have accumulated more and more power, under the guise of “freedom.” At the moment, employers can fire employees for their political views, require employees to attend political rallies, and even volunteer for candidates they disagree with. Hobby Lobby is asking the Supreme Court to extend this even further, to forcing employees to choose health insurance that matches the religious preferences of their employers.
All of this raises important questions. Is this about securing religious liberty, or expanding it for a particular group? And if it’s the latter, is Hobby Lobby fighting for “liberty,” or is it demanding the right to oppress?
By: Jamelle Bouie, The Daily Beast, November 27, 2013
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