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In its recent decision in Hobby Lobby, the conservative 5-4 majority -- Chief Justice Roberts and Justices Alito, Scalia, Thomas, and Kennedy -- did something that may appear very unusual. In divided cases, these five justices have the reputation for interpreting very narrowly laws passed by Congress to protect civil rights. So why did they interpret so broadly the Religious Freedom Restoration Act (RFRA), a law passed by Congress to protect the important civil right of religious freedom? The answer, unfortunately, is all too clear. Comparing Hobby Lobby with the two rulings in civil rights law cases issued by the Court over the last year, the key factor that explains how the conservative majority ruled is not precedent, the language of the statute, or congressional intent, but who wins and who loses.
Let's start with last year's rulings, both of which concerned Title VII of the 1964 Civil Rights Act which bans employment discrimination. In University of Texas Southwestern Medical Center v. Nassar, the majority ruled very narrowly in interpreting Title VII, deciding that the only way that employees can prevail on a claim that they have been fired in retaliation for raising job bias claims is to prove that they would not have been discharged "but for" the retaliatory motive. This was despite the fact that in order to strengthen Title VII, Congress added language to the law in 1991 to make clear that plaintiffs should prevail if they show that discrimination was a "motivating factor" in a job decision. As Justice Ginsburg explained in dissecting Justice Alito's attempt for the majority to draw a distinction between retaliation and other claims under Title VII, the net effect of the majority's ruling was to make it harder to prove a Title VII retaliation claim than before the 1991 law and with respect to other civil rights statutes that don't explicitly mention retaliation. The 5-4 majority had "seized on a provision adopted by Congress as part of an endeavor to strengthen Title VII," she concluded, "and turned it into a measure reducing the force of the ban on retaliation."
In Nassar, in ruling against a doctor of Middle Eastern descent in a case also involving egregious ethnic and national origin discrimination, Alito disregarded clear legislative history and language showing Congress' broad intent, as well as the interpretation of the law by the Equal Employment Opportunity Commission (EEOC). Interestingly, towards the end of his opinion, Alito appeared to reveal a key consideration behind the majority's decision. The ruling was important, he explained, to "the fair and responsible allocation of resources in the judicial and litigation systems." After all, he pointed out, retaliation claims "are being made with ever-increasing frequency," although he did not even consider how many have been proven meritorious. Agreeing with the EEOC and the plaintiff on the "motivating factor" standard, he wrote instead, "could also contribute to the filing of frivolous claims." As Justice Ginsburg put it, the majority "appears driven by zeal to reduce the number of retaliation claims against employers."
The other 2013 Title VII ruling also reflected an extremely narrow reading of the law. Vance v. Ball State University concerned a complaint by an African-American woman that she had been subjected to racial harassment and a racially hostile work environment. Under prior Title VII Court rulings agreed to by both conservative and moderate justices, the employer itself is often liable for such harassment claims when the harassment is committed by an employee's supervisor. But in Vance, in an opinion by Justice Alito, the familiar 5-4 Court majority significantly narrowed Title VII. It ruled that such vicarious employer liability applies only when the harassment is committed by a manager who can fire or reduce the pay or grade of the victim, not when it is committed by a manager who does not have that power but does control the day-to-day schedules, assignments, and working environment of the victim.
As Justice Ginsburg explained in dissent, the majority's holding again contradicted guidance issued by the EEOC as well as Congress' broad purpose to eliminate workplace discrimination. In fact, she pointed out, not even the university defendant in Vance itself "has advanced the restrictive definition the Court adopts." But again, Alito's opinion betrayed part of the majority's true motives. Its narrow interpretation would be "workable" and "readily applied," Alito explained. And it would promote "the limitation of employer liability in certain circumstances."
Something very different happened in the next Supreme Court case interpreting a Congressional civil rights statute: 2014's Burwell v. Hobby Lobby.
In that case, the same 5-4 majority that narrowly interpreted Title VII in Vance and Nassar adopted a very broad interpretation of the Religious Freedom Restoration Act (RFRA). All nine justices agreed that RFRA was enacted by Congress in response to the Supreme Court decision in Employment Division v. Smith, which restricted the protection of religious liberty by the Court under the First Amendment. But the 5-4 majority in Hobby Lobby ruled that RFRA provides "very broad protection for religious liberty" - "even broader protection than was available" under the First Amendment in pre-Smith decisions. As Justice Ginsburg put it in dissent, the majority interpreted RFRA "as a bold initiative departing from, rather than restoring, pre-Smith jurisprudence." She explained further that this broad interpretation contradicted the language of the statute, its legislative history, and a statement by the Court in a unanimous ruling in 2006 that in RFRA, Congress "adopt[ed] a statutory rule comparable to the constitutional rule rejected in Smith."
This difference in statutory interpretation was critical to the majority's ruling in Hobby Lobby -- that for-profit corporations whose owners had religious objections to contraceptives could invoke RFRA to refuse to obey the Affordable Care Act's mandate that they provide their employees with health plans under which contraceptives are available to female employees. As Justice Ginsburg explained, no previous Court decision under RFRA or the First Amendment had ever "recognized a for-profit corporation's qualification for a religious exemption" and such a ruling "surely is not grounded in the pre-Smith precedent Congress sought to preserve." The 5-4 majority's broad interpretation that RFRA applies to for-profit corporations like Hobby Lobby was obviously crucial to its holding.
In addition, however, the 5-4 majority went beyond pre-Smith case law in another crucial respect. Before a person can claim an exemption from a generally applicable law under RFRA, he or she must prove that the law "substantially burden[s] a person's exercise of religion." According to the majority, the corporations in Hobby Lobby met that standard by demonstrating that the use of certain contraceptives that could be purchased by their employees under their health plans would seriously offend the deeply held religious beliefs of their owners. As Justice Ginsburg explained, however, that ruling conflicted with pre-Smith case law on what must be shown to prove a "substantial burden." In several pre-Smith cases, the Court had ruled that there was no "substantial burden" created by, for example, the government's use of a social security number to administer benefit programs or its requirement that social security taxes be paid, despite the genuine and sincere offense that these actions caused to some religious beliefs. As Justice Ginsburg stated, such religious "beliefs, however deeply held, do not suffice to sustain a RFRA claim," except under the extremely broad interpretation of RFRA by the 5-4 Court majority.
As in the Title VII cases, Justice Alito's opinion for the 5-4 majority in Hobby Lobby was revealing about some of the majority's underlying concerns. In explaining the majority's decision to interpret RFRA as applying to for-profit corporations, Justice Alito noted that "[w]hen rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people" - in this case "the humans who own and control those companies" in the Hobby Lobby case. As Justice Ginsburg observed, the 5-4 majority paid little attention to the Court's pronouncement in a pre-Smith case that permitting a religious exemption to a general law for a corporation would "operate[e] to impose the employer's religious faith on the employees" of the corporation.
Even though the Supreme Court's 2013-14 rulings that interpreted civil rights laws passed by Congress may seem different, a common theme animates them all. Whether the 5-4 majority interpreted the statutes broadly or narrowly, the losers in all of them were women, minorities, and working people, and the winners were employers and corporations. In the majority's own words, the result is the "limitation of employer liability" under laws like Title VII designed to protect workers and the "protecting" of the "humans who own and control" corporations under RFRA.
Since all these rulings interpret Congressional statutes, not the Constitution, Congress clearly has the authority to reverse them. In fact, Congress has done exactly that with respect to other 5-4 rulings by the Court that misinterpreted civil rights statutes to harm women and minority workers and benefit their corporate employers. As recently as 2009, the Lily Ledbetter Fair Pay Act reversed a flawed 5-4 ruling that severely restricted workers' ability to file equal pay claims under Title VII. Congress is already considering legislation to reverse many of the effects of Hobby Lobby, a corrective effort that Senate Republicans have blocked by a filibuster to prevent the full Senate from even considering it. In our currently divided Congress, immediate prospects for the passage of such remedial legislation may not appear promising. But it is important to recognize the current 5-4 majority's pattern of favoring corporations and harming workers in its decisions interpreting federal civil rights laws, and to recognize and act on the ability to reverse these harmful rulings.
People For the American Way is launching a Spanish-language radio ad today challenging North Carolina Senate candidate Thom Tillis and his extreme stances on education, healthcare, and tax breaks for the rich. The ad will air starting today in Charlotte, Greensboro, and Raleigh.
“Thom Tillis has pushed an extreme agenda throughout his career,” said Randy Borntrager of People For the American Way. “He’s given tax breaks to the most privileged of our society while raising taxes on middle class families, and wants to roll back critical health care protections for families. Thom Tillis’ dangerous agenda is too extreme and Latino voters deserve to know what is at stake this election.”
The ad is the latest in PFAW’s campaign to connect with Latino voters in key states, exposing the extreme views of GOP candidates. (An English translation of the ad is available below. You can hear an English version of the ad here.)
ROSA: Como mamá, como mujer, como Hispana,
yo no apoyo al republicano Thom Tillis.
Y no lo haré ¡nunca!
Porque jamás apoyaré a una persona que recorta los fondos públicos a la educación y reduce el gasto social en salud.
¡¿Pues quién se cree este señor?!
Es obvio que no entiende, ni valora, la importancia de la educación, y no apoya el futuro de nuestros hijos.
¡Pero eso sí! Apoya los recortes en impuestos para yates y aviones de los ricos.
Thom Tillis, ¡por favor!
Hay que ordenar sus prioridades.
Además, quiere quitarle el seguro médico a quienes lo tienen.
El seguro médico que yo ¡y SIETE MILLONES de norteamericanos! por fin tenemos, y que nos protege a nosotras y a nuestra familia.
Carolina del Norte es nuestro hogar.
Y el republicano Thom Tillis está en contra de todo lo que es importante para las familias Hispanas. Empezando por un mejor futuro para nuestros hijos.
Y si él está en contra de eso, yo estoy en contra de él.
¡Así de fácil!
Este mensaje es pagado por People For the American Way, (www.pfaw.org) y no está autorizado por ningún candidato o comité de candidato. People For the American Way es responsable por el contenido de este anuncio.
ROSA: As a mom, a woman, a Hispanic, I do not support Republican Thom Tillis.
And I never will.
Because I will never support a person that cuts public education funds and reduces social spending on health.
Who does this gentleman think he is?
It's obvious that he does not understand nor value the importance of education and doesn't support our kids future.
But what does he do? He supports tax breaks for the rich with yachts and airplanes.
Thom Tillis, please!
Set your priorities straight!
Plus, he wants to take away health insurance from those who have it.
The health insurance that I, and seven million Americans, finally have, and that protects us and our families.
Look, North Carolina is our home.
And Republican Thom Tillis is against everything that's important for Hispanic families. Starting with a better future for our kids.
And if he's against that, I'm against him.
As easy as that!
Paid for by People For the American Way (www.pfaw.org) and not authorized by any candidate or candidate’s committee. People For the American Way is responsible for the content of this advertising.
PFAW, a national group protecting civil rights and civil liberties, has worked in multiple local, state, and federal campaigns to engage Latino voters.
We here at People For the American Way Foundation are deeply saddened by the passing of Julius Chambers, a trailblazing civil rights lawyer and former People For the American Way Foundation board member. In the 1960s, Chambers opened what became the first integrated law firm in North Carolina and later went on to lead the NAACP Legal Defense & Educational Fund. Throughout his life, he fought and won cases on school desegregation and discrimination, including a case on public school integration – Swann v. Charlotte-Mecklenburg Board of Education– that went all the way to the Supreme Court and paved the way for the use of busing to counter segregation.
But as the New York Times noted yesterday:
Mr. Chambers’s victories came with a cost. In the wake of the Supreme Court’s decision in Swann, his offices were firebombed. After his successes in 1965, his car was firebombed and two bombs exploded in his home.
His response was defiant; he said he would “keep fighting.”
More than forty years later, during a 2008 PFAW Foundation panel on the future of the Supreme Court, Chambers made it clear that he was still fighting. He underscored his commitment to “us[ing] the courts to correct the injustices that we see still perpetuated today,” including discrimination against low-income people.
It is not difficult to see why the North Carolina NAACP chapter described Chambers as “a man of tremendous courage.”
Sen. Daniel Inouye of Hawaii, President Pro Tempore of the Senate, passed away yesterday at the age of 88, having represented the people of Hawaii in either the House or Senate as long as it has been a state. Inouye was elected to the Senate nine times, serving nearly 50 years. Taking office the year before the passage of the Civil Rights Act of 1964, Inouye was a leader in half a century of civil rights battles in the Senate. John Nichols of The Nation details Inouye’s role in some of those battles:
The last sitting senator who joined the epic struggles to pass the Civil Rights Act and the Voting Rights Act, he led the fight for the Americans with Disabilities Act and was a key sponsor of the constitutional amendment to extend voting rights to 18-to-20-year-olds.
Inouye battled for reparations for Japanese-Americans who were interned in government compounds during World War II. And he was a passionate defender of the right to dissent. Indeed, the ACLU recalls, “Senator Inouye fought every iteration of proposed constitutional amendments to ban flag desecration—support that was particularly meaningful to the defense of free speech because of his military service.”
Inouye was one of the handful of senators who rejected the discriminatory Defense of Marriage Act in the 1990s and he emerged as one of the earliest and most determined backers of marriage equality in the Senate, asking: “How can we call ourselves the land of the free, if we do not permit people who love one another to get married?”
When the debate over whether gays and lesbians serving in the military arose, Inouye declared as a Congressional Medal of Honor recipient: “In every war we have had men and women of different sexual orientation who have stood in harm’s way and given their lives for their country. I fought alongside gay men during World War II, many of them were killed in combat. Are we to suggest that because of their sexual orientation they are not heroes?”
Sen. Inouye represented the best of American values. This country will miss him.
Minister Leslie Watson Malachi, Director of People For the American Way Foundation’s African American Ministers Leadership Council, issued the following statement in response to the Justice Department’s announcement that it would open a civil rights investigation into the fatal shooting of Florida teenager Trayvon Martin:
“It is shocking that nearly 60 years after the murder of Emmett Till, a black teenager can be killed simply for walking down the street, and his killer not even tried. Trayvon Martin’s life was not expendable. Unfortunately, for many weeks local law enforcement acted as if it were.
“The Justice Department was right to open an investigation into Trayvon’s murder. All his family is asking for is their constitutional right to equal justice under the law, for our justice system to recognize the value of their son’s life. In 2012, that shouldn’t be too much to ask.”
African American Ministers Leadership Council, a program of People For the American Way Foundation, is an alliance of over 700 progressive African American clergy supporting social justice, civil rights, and reproductive health and justice.
Minister Leslie Watson Malachi, Director of People For the American Way Foundation’s African American Ministers Leadership Council, issued the following statement on the passing of New Jersey congressman Donald Payne:
“We are all saddened to hear of the loss of Congressman Payne, who has been a leader and an inspiration to a generation of civil rights advocates. Congressman Payne, through his work in Congress and at the Congressional Black Caucus and the Congressional Black Caucus foundation, has done so much to make the voices and needs of African Americans heard in Washington.
“Congressman Payne, while an important voice for African Americans, was also an outspoken advocate for human and civil rights for all Americans and for people around the world. He will be missed, and his life and the values he stood for will continue to inspire.”