Republican legislators and governors have dramatically restricted women’s access to abortion in recent years. Those successes have emboldened the anti-choice movement to pursue ever-more extreme goals, which is why we now see Republican presidential candidates vowing to grant full constitutional rights to a fertilized egg, and pledging to use the power of the White House to legally ban abortion in all circumstances, including rape, incest, or to save a woman’s life. The Religious Right’s relentless campaign to destroy Planned Parenthood is part of this broader effort to eliminate women’s access to abortion altogether — and the push to control and restrict women’s sexual autonomy and health care extends even further, to undermining access to birth control.
The current campaign against Planned Parenthood relies not only on the deceptively edited videos purporting to show wrongdoing by Planned Parenthood staff, but also on the dubious claim that women’s access to health care will not suffer because women can get health care at other clinics. In this mix are not only federally funded community health clinics, but also religiously affiliated networks of crisis pregnancy centers (CPCs) and medical clinics whose business model is to intercept women seeking information about abortion and provide them with misleading or one-sided information intended to talk them out of it. Many of those clinics, purporting to “replace” the care that women receive from Planned Parenthood, do not provide contraception.
Earlier this month, the conservative National Catholic Register asked, “Can National Pro-Life Health Centers Become the Cure for Planned Parenthood?” It was a reprise of an article from last year in which anti-choice activist Abby Johnson explained that upgrading crisis pregnancy centers into medical clinics was a strategic way to hurt Planned Parenthood by taking away some of the business it does in providing testing for sexually transmitted diseases and cancer screenings. Asked whether she thinks “these modern pro-life centers” could threaten Planned Parenthood, she responded, “Yes, absolutely. I think they are the No. 1 threat to Planned Parenthood.”
In July, the right-wing National Review published a collection of responses it received when it “asked some distinguished experts what would become of women’s health in a post-Planned Parenthood era.”
One of National Review’s respondents was Erika Bachiochi, an anti-choice attorney who edited a book that defends Catholic teaching on sex and marriage, including the church’s opposition to contraception. Among the groups that Bachiochi says are “working heroically to replace Planned Parenthood” are Obria Medical Clinics and the Guiding Star project.
Obria Medical Clinics offer what the National Catholic Register calls “comprehensive medical care,” but that depends on your definition of “comprehensive.” The article states, “The affiliate agreement stipulates no contraception or abortion referral or things of that nature will be allowed.”
But Obria’s website is far from clear on this point, offering women who come to the site a section entitled “Contraception: A Variety of Choices.”
Before taking any contraceptive, it is important to understand how contraception works and what it could mean to your health to practice various forms of birth control. Understanding the different types of birth control options that are available is critical in making the best decision for you. It’s also valuable to understand how your body works and to track your monthly cycles. At Obria, our medical professionals are happy to go over information about available contraception methods with you and help you feel empowered.
The Obria Foundation seeks to transform CPCs into “life-affirming medical clinics” and hopes to expand from its base in Orange County, California into a statewide, then national network. Its website says it also teaches abstinence education. Obria lists the U.S. Conference of Catholic Bishops as one of its partner organizations; it is also partnering with churches in Orange County, Florida, to raise funds and steer teenagers away from abortion providers by presenting them “with a Christ-centered perspective.” Obria founder Kathleen Eaton Bravo received a Distinguished Leader Award from the anti-choice Susan B. Anthony List this year.
Another group praised by Bachiochi that is hoping to build a national network to “replace” Planned Parenthood is Guiding Star. Guiding Star describes itself as “a group of people who uphold Natural Law through the promotion of New Feminism.”
Guiding Star’s website explains that “New Feminism” discards the bad idea of “old feminism” that men and women are “interchangeable”— and replaces it by “viewing femininity through a lens of hope and joy.” They are working to establish “a nationwide family of Guiding Star Centers” that they say will “provide support for natural means of family planning, fertility care, childbirth, breastfeeding, and family life.” One thing Guiding Star clinics will not do is provide women with contraception, because Guiding Star believes that contraception and abortion “interrupt natural, healthy, biological processes and are not in the best interest of women and their families.”
Obria and Guiding Star are joining existing networks of crisis pregnancy clinics (CPCs) with similar outlooks on contraception. In last year’s National Catholic Register story, Johnson cited both Heartbeat International and Care Net as having models for centers who want to upgrade their medical services in order to pull patients away from Planned Parenthood.
Heartbeat International has a video online specifically saying that if Planned Parenthood is defunded, women can get care through “life-affirming” centers and clinics. The group, which says it has “supported, strengthened and started” 1,800 “pregnancy help organizations” globally), describes itself as broadly Christian: “All Heartbeat International policies and materials are consistent with Biblical principles and with orthodox Christian (Catholic, Protestant, and Orthodox) ethical principles and teaching on the dignity of the human person and sanctity of human life.” But Heartbeat International’s position on contraception goes well beyond opposition to methods that it believes act as abortifacients, and therefore well beyond the understanding of many Protestant and Orthodox churches, not to mention most American Catholics:
“Heartbeat International does not promote birth control (devices or medications) for family planning, population control, or health issues, including disease prevention.”
“The pregnancy center does not recommend, provide, or refer single women for contraceptives. (Married women seeking contraceptive information should be urged to seek counsel, along with their husbands, from their pastor and/or physician.)”
That makes it clear that one goal of those creating and funding these clinics is restricting women’s sexual autonomy. As this month’s National Catholic Register story notes, “Obria and Guiding Star’s providers do not prescribe or refer for contraception; both abide fully by Catholic teaching on sexual ethics and fertility.” Adds Abby Johnson, a board member of the Guiding Star Project, “One of the really important things about pro-life medical centers is they can help women change their behavior.”
Anti-abortion activist Alveda King claimed in a radio interview yesterday that female journalists may be hesitant to be critical of abortion rights because they have had abortions themselves or have been rendered infertile by “the chemicals and things that they try to use for birth control.”
King was discussing with Rebecca Maxwell, guest host of the “Steave Deace Show,” the recent set of videos smearing Planned Parenthood by suggesting that the organization sells fetal tissue for profit. The media was forced to cover these videos, King said, even though they had been “hesitant to deal with” legal abortion in general, perhaps because of their own personal histories.
“One reason that people have been hesitant to deal with it: shame, secrecy,” she explained. “And even if you think about the media, how do we know [whether a journalist who] is reporting this information has had to grapple with abortion or loss of fertility through using the chemicals and things that they try to use for birth control?"
"There are so many layers," she added. "How do we know that the men themselves weren’t involved in having their own child aborted? So it’s bringing it right up to you, it’s unavoidable, it’s true.”
The myth that hormonal birth control causes long-term infertility has been debunked by no less a flaming liberal outfit than Fox News, which notes that the “birth control and infertility myth has been circling around since the U.S Food and Drug Administration (FDA) approved the pill in 1960.”
The Tenth Circuit today released its opinion in Little Sisters of the Poor v. Burwell, becoming the latest federal appellate court to reject the claim that the Obama Administration’s contraception coverage accommodation for religious nonprofits violates their religious liberty.
This is the latest effort by the far right to redefine “religious liberty” and the Religious Freedom Restoration Act (RFRA) to use as a sword to deprive third parties of their legal rights. Under RFRA, no federal law imposing a substantial burden on religious exercise can be sustained unless it is the least restrictive means of achieving a compelling government purpose.
The Tenth Circuit now joins the DC Circuit, the Third Circuit, the Fifth Circuit, and the Seventh Circuit in rejecting this attack on the accommodation for religious nonprofits. Notably, all these decisions came after the Supreme Court rewrote the Religious Freedom Restoration Act (RFRA) in the Hobby Lobby case, giving certain for-profit corporations and their owners greater latitude to exempt themselves from laws they find personally offensive. (The Sixth Circuit also reached the same conclusion, but it is still in the process of reconsidering it to make sure it is consistent with Hobby Lobby.)
The Obama Administration created a process whereby religious nonprofits can exempt themselves from the federal requirement that its employees have certain contraception healthcare coverage: Fill out a form (or now, just send a letter) and let the Department of Health and Human Services know that you won’t be providing it and say who your insurance carrier is, so that officials can inform them of their legal requirements to provide the coverage. The religious right has called even this accommodation a violation of the religious liberty rights of nonprofits, saying it makes them complicit in the provision of contraception that violates their religious beliefs.
The Tenth Circuit concluded that the accommodation does not substantially burden Plaintiffs’ religious exercise and therefore does not violate RFRA. The court stated:
The accommodation relieves Plaintiffs from complying with the Mandate and guarantees they will not have to provide, pay for, or facilitate contraceptive coverage. Plaintiffs do not “trigger” or otherwise cause contraceptive coverage because federal law, not the act of opting out, entitles plan participants and beneficiaries to coverage. Although Plaintiffs allege the administrative tasks required to opt out of the Mandate make them complicit in the overall delivery scheme, opting out instead relieves them from complicity.
The court does not question the sincerity of the plaintiffs’ assertion that filling out the form violates their religious beliefs. But it also pointed out that under RFRA, whether a burden is substantial is a legal question that is up to the court, not the plaintiff, to answer:
If plaintiffs could assert and establish that a burden is “substantial” without any possibility of judicial scrutiny, the word “substantial” would become wholly devoid of independent meaning. Furthermore, accepting any burden alleged by Plaintiffs as “substantial” would improperly conflate the determination that a religious belief is sincerely held with the determination that a law or policy substantially burdens religious exercise. (internal citation removed)
Whether it’s women’s ability to access their legal right to healthcare or same-sex couples’ ability to exercise their constitutional right to marry, imagine the chaos if people could simply exempt themselves from – and severely weaken – laws they disapprove of by citing their personal religious beliefs.
But that is a recipe for a Balkanized society, not a healthy pluralistic democracy. Citing a previous case, the Tenth Circuit states: “Law accommodates religion; it cannot wholly exempt religion from the reach of the law.”
Even though Mike Huckabee signed into law a contraception coverage mandate that was actually much more sweeping than a similar mandate in the Affordable Care Act (ACA) while serving as governor of Arkansas, the Republican politician has been one of the most incendiary opponents of the ACA mandate.
While speaking today with American Family Radio host Kevin McCullough, who falsely claimed that “Obamacare makes abortion taxpayer funded,” Huckabee baselessly charged that the mandate covers “abortifacients.”
Huckabee said that the mandate represents such a threat to freedom that it is similar to the actions of the British government that sparked the American Revolution: “When I go back to American history, that’s why the American revolution started. You had a government that became a tyranny and that government began to tell people what limitations of their belief could be.”
To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: September 25, 2014
Subject: PFAW Foundation’s Supreme Court 2014-2015 Term Preview
The beginning of a new Supreme Court term has become a time to worry, “What’s next?” In the past two terms alone, often in 5-4 decisions, the Roberts Court has severely undermined the Voting Rights Act, continued its assault on the American people’s efforts to limit money in politics, strengthened the hand of employers who discriminate, significantly eroded church-state separation, discovered religious rights for for-profit corporations seeking to deny female employees needed contraception coverage, undercut unions, and found ways to help large corporations bypass laws designed to limit their power over small businesses and ordinary people.
As bad as the Roberts Court has been, there have also been some good decisions in the most recent terms. For instance, the Court struck down the odious Defense of Marriage Act, upheld the EPA's general authority to issue regulations on greenhouse gas emissions from power plants, and unanimously recognized our Fourth Amendment right to privacy concerning our smart phones.
The 2014-2015 Term is set to begin on October 6, the traditional First Monday in October, and the Court will be hearing a number of important cases. At the same time, perhaps half the cases it will hear this term have not been determined or announced, and there is substantial speculation on whether it will hear cases on several high-profile issues, marriage equality most prominent among them. Below is a summary of some of the major cases the Court may hear this term, along with cases already scheduled that we will be following.
CASES THAT THE COURT MIGHT HEAR
If the Court accepts a marriage equality case, it will obviously become the blockbuster case of the term (and perhaps the decade). The Court has already been asked to hear appeals of pro-equality rulings by three circuit courts: From the Tenth Circuit are Herbert v. Kitchen (Utah) and Smith v. Bishop (Oklahoma). From the Fourth Circuit are Rainey v. Bostic, Schaefer v. Bostic, and McQuigg v. Bostic (all Virginia). From the Seventh Circuit are Bogan v. Baskin (Indiana) and Walker v. Wolf (Wisconsin). While states and government officials who lost in the lower courts are filing the appeals, the couples who won the cases are also urging the Court to hear the appeals, so there can finally be a national resolution to the issue.
Should one of the remaining circuit courts uphold a state marriage ban, the resulting split among circuits on such a major constitutional issue would almost guarantee review by the Supreme Court. But if every circuit continues to rule the same way, the Justices might decide to let the issue be resolved there.
Conservatives like Scalia and Thomas, who have in case after case shown their hostility to LGBT equality but may be unsure of how Kennedy would vote, might not be willing to risk a Supreme Court precedent that same-sex couples have a constitutional right to marry. From their perspective, if they can’t change the outcome around the country, why make it worse by adding a jurisprudential nightmare from the nation’s highest court that would taint American law for decades to come?
For Justices likely to recognize the constitutional right to marriage equality, the calculation might be different. They, too, not knowing Kennedy’s position, might not want to risk a 5-4 ruling in the “wrong” direction on a major constitutional and societal issue. But even if they could be certain of being in the majority, they might find advantages to having the Court stay out. Justice Ginsburg, for instance, has suggested publicly that Roe v. Wade went “too far, too fast,” provoking a backlash that could otherwise have been avoided. If the legal question of marriage equality is being decided rightly in all the circuit courts, some Justices might rather leave well enough alone. In fact, Justice Ginsburg told a group of law students in mid-September that without a circuit split, she saw “no urgency” for the Court to take up the issue now, although she added that she expects the Court to take it up “sooner or later.”
Should the Court grant cert on one or more of the appeals, it could answer a number of critically important questions in addition to whether states can prohibit same-sex couples from marrying.
Exactly which constitutional right do the bans violate? While numerous courts have ruled in favor of same-sex couples, they have been anything but unanimous in their reasoning: Some have suggested that the bans violate the Due Process Clause, because the longstanding, fundamental right to marry includes the right to marry someone of the same sex. Other judges indicate that the bans violate the Equal Protection Clause because they deny the right to marry based on the sex of the people seeking to get married. Still others suggest that the bans violate the Equal Protection Clause because they discriminate against gays and lesbians. While the different legal rationales would all have the same immediate result (marriage equality), they could create very different legal precedents and have very different impacts down the line as lower courts consider other types of discrimination, whether aimed at gays and lesbians, at transgender people, or at others.
A Supreme Court ruling might decide what level of scrutiny the Equal Protection Clause requires for laws that discriminate against gay people, an issue not squarely faced in previous cases. Most government classifications are subject to – and easily pass – “rational basis” scrutiny by the courts: The law is constitutional as long as it’s rationally related to some legitimate government interest. (The Court has said that animus against gays and lesbians is not a legitimate purpose, which in the past has let it bypass the question as to whether anti-gay laws warrant more scrutiny from the courts.)
But a few types of laws trigger heightened Equal Protection scrutiny. Sex-based classifications are subject to intermediate scrutiny: They must be substantially related to an important government interest. Race-based classifications are generally subject to strict scrutiny, the highest level: They must be narrowly tailored to achieve a compelling government interest. If the Court rules that laws discriminating against lesbians and gays warrant some level of heightened scrutiny, that would have an enormous impact nationwide on all kinds of laws that discriminate against lesbians and gays, not just marriage bans.
The Court’s discussion of this issue could also shed light on whether eliminating private discrimination against LGBT people is (in the Court’s eyes) a compelling government interest. This could have an enormous impact as courts consider right wing challenges to anti-discrimination laws on the basis of the federal Religious Freedom Restoration Act or state-law analogs.
Opponents of the Affordable Care Act strategically launched lawsuits in four different circuits challenging federal subsidies for millions of Americans buying health insurance on federally-run exchanges. The circuits were apparently selected to maximize the possibility of a circuit split, which in turn would maximize the likelihood of getting the case heard by the Roberts Court, which (they hope) would deliver a crippling blow to Obamacare. Decisions have been reached in two of the circuits, although one has since been vacated.
Section 1311 of the ACA says states should set up insurance exchanges, while Section 1321 of the Act says the federal government can set one up if a state doesn't. Subsidies are available for less well-off people getting health insurance through an exchange, based on the amount the person pays for the insurance s/he is enrolled in through an exchange "established by the state under [section] 1311" of the ACA. The law’s opponents hope to have the Supreme Court rule that Congress intended for subsidies to be unavailable to Americans purchasing insurance through the federally-established exchanges that the law calls for in cases where the state does not step in. In other words, the argument is that Congress intended to undercut the financial viability of the law and thwart its central purpose.
A unanimous panel of the Fourth Circuit rejected this wild claim in King v. Burwell. However, two far right judges on the D.C. Circuit formed a majority in a three-judge panel ruling actually agreeing with the Obama care opponents in Halbig v. Burwell. Dissenting Judge Harry Edwards recognized the lawsuit as a “not-so-veiled attempt to gut the Patient Protection and Affordable Care Act,” noting that “[i]t is inconceivable that Congress intended to give States the power to cause the ACA to crumble.” The full D.C. Circuit subsequently vacated the ruling and will consider the issue en banc, and most observers expect a ruling more like the Fourth Circuit’s.
But even if that happens, there are still lawsuits percolating in Indiana (Seventh Circuit) and Oklahoma (Tenth Circuit), so the hoped-for circuit split may yet occur. If it does, the Roberts Court is almost certain to consider the issue. While the case is transparently political and legally weak, that did not stop the conservative Justices when it came to the Commerce Clause challenge to the individual mandate.
The Roberts Court may hear one or more cases involving religious nonprofits that oppose the ACA’s contraception coverage requirement, in a sequel to Hobby Lobby v. Burwell. In that case, the Roberts Court gave certain for-profit corporations religious liberty rights under the Religious Freedom Restoration Act (RFRA), then completely rewrote the law to give the chain store the right to “exercise” its religion by refusing to comply with the ACA’s contraception coverage requirement.
Under RFRA, a federal law cannot impose a substantial burden on a person’s religious exercise unless it is in furtherance of a compelling governmental interest, and it is the least restrictive means of doing so. In Hobby Lobby, the Roberts Court concluded that the corporation and its owners suffered a “substantial” burden” on their religious exercise because the owners were offended by the contraception coverage requirement, even though it did not restrict or burden what they may believe or do. The majority also concluded that the law was not the least restrictive means of furthering the government’s interest in women’s health, because the Administration offers religious nonprofits an accommodation: They are exempt if they simply sign a form certifying that they are a religious nonprofit that objects to the provision of contraceptive services, and provide a copy of that form to their insurance issuer or third-party administrator, which then has the responsibility to pay for and provide the coverage. (Churches, in contrast, are wholly exempt.) The Roberts Court concluded that the federal government can make this accommodation available to for-profit corporations, meaning the coverage requirement is not the least restrictive means of achieving the ACA’s goal.
But three days later, the Court issued a temporary injunction against enforcing even this accommodation against Wheaton College, a non-profit religious institution that argued that the accommodation substantially burdens its religious freedom. This prompted a furious dissent from the three women Justices. Although the merits of the case are still being argued before a lower federal court, this was an ominous sign of how the Roberts Court will address the legal question when it inevitably reaches the high court.
Another high-profile case (or one similar to it) that may reach the Court involves Little Sisters of the Poor. This religious nonprofit organization, too, has a religious objection to the accommodation that was designed to meet its religious objections, arguing that the form is like a permission slip that would trigger contraception coverage, making the nuns complicit in sin. However, the Little Sisters’ insurer is classified as a “church plan,” which is actually exempt from the ACA requirement. So regardless of whether the Little Sisters signed the form, their employees would still not have the contraception coverage. Nevertheless, last January, while its RFRA suit against the contraception coverage provision was before the Tenth Circuit (where it is still pending), the Supreme Court enjoined the federal government from enforcing the law until a final resolution on the merits.
It seems likely that there will be a request that this issue be considered by the Supreme Court at some point this term, either through one of these cases or one similar to them.
CASES CURRENTLY BEFORE THE COURT
EMPLOYMENT DISCRIMINATION AND WORKERS’ RIGHTS
The Supreme Court is to decide to what extent employers can treat pregnant workers temporarily unable to work differently from other workers temporarily unable to work.
This case involves Peggy Young, a pregnant employee of UPS with temporary medical restrictions on how much she could safely lift. UPS did not make any accommodations for her, such as temporary alternative work. As a result, she spent several months on unpaid leave, during which she lost her medical coverage.
In 1976, the Supreme Court ruled that discriminating against employees who are pregnant was not sex discrimination under Title VII. Congress corrected that interpretation of the law in 1978 with the Pregnancy Discrimination Act (PDA), which has two relevant provisions. First, it specifies that sex discrimination includes discrimination on the basis of pregnancy, childbirth, or related medical conditions.
The second provision explains how to apply that general principle: It says that women affected by pregnancy “shall be treated the same for all employment-related purposes … as other persons not so affected but similar in their ability or inability to work.” This establishes a basis of comparison. So while a typical sex discrimination case looks at how a female plaintiff is treated in comparison to similarly situated men, a PDA case looks at how she is treated in comparison to non-pregnant workers with similar ability (or inability) to work.
UPS’s collective bargaining contract calls for UPS to accommodate temporarily disabled employees if the disability is due to an on-the-job injury, or if they have lost their DOT certification to drive. UPS also accommodates employees who have a permanent impairment under the Americans With Disabilities Act. UPS says its policy is “pregnancy-blind:” They claim they are treating Young the same way they’d treat a non-pregnant employee whose injury doesn’t fit any of the above conditions.
But Young argues that isn’t the proper analysis under the PDA. She points out that UPS would have made an accommodation for someone “similar in their ability or inability to work” to her if they were in one of those three categories. So, she concludes, the plain text of the PDA requires UPS to accommodate her, as well.
The Supreme Court is to decide if employers can deny overtime pay to employees at “customer fulfillment” distribution centers for the time they spend waiting for mandatory security screenings.
This is a class-action lawsuit brought by Jesse Busk and Laurie Castro, two former employees of Integrity Staffing Solutions, which provides workers to work in the warehouses of companies like Amazon.com. At the end of the shift, the company requires every employee to go through a security check before they leave the facility to make sure they aren’t stealing the merchandise. The employees wait as long as 25 minutes to be searched. Busk and Castro claim that they should have been paid overtime for this time under the Fair Labor Standards Act (FLSA), as should all current employees, as well.
FLSA requires overtime pay when a covered employee works more than 40 hours in a workweek. In 1947, Congress helped define what counts as “work” by passing the Portal-to-Portal Act (PPA), which says that FLSA’s overtime requirement doesn’t apply to activities that are “preliminary” or “postliminary” to an employee’s primary job responsibilities. In a 1956 case called Steiner v. Mitchell, the Supreme Court interpreted the PPA as requiring overtime only for tasks that are an “integral and indispensable part of the principal activities for which covered workman are employed.”
Busk and Castro say that any activity required by and beneﬁtting the employer (such as the security searches) are part of the actual job, not “postliminary” to it, so they count as time at work under FLSA and should generate overtime pay. They get support from an amicus brief submitted by the National Employment Lawyers Association, which details how loss-prevention activities have become integrated into the modern retail work routine, making searches like those at issue here part of an employee’s principal activities.
The workers won at the Ninth Circuit, but the court used different reasoning: that the searches are “postliminary” (so the Portal-to-Portal Act applies), but that they are an “integral and indispensable part” of the workers’ principal activities and therefore subject to overtime pay. Integrity (supported by an amicus brief from the Obama Administration) asserts that the searches are “postliminary” to work, are not an “integral and indispensable part” of the employees’ principal activities and, therefore, don’t trigger the overtime requirement.
Part of the company’s argument seems to be a results-based pitch to a corporate-friendly Court: In its certiorari petition urging the Justices to hear its appeal, Integrity Staffing wrote that since the Ninth Circuit ruling, “plaintiffs’ lawyers have brought nationwide class actions against a number of major employers—including Apple, Amazon.com, and CVS—seeking back pay (plus overtime and penalties) for time spent in security screenings.” Notice that it isn’t employees who are suing, but “plaintiffs’ lawyers,” a framing that is red meat for right-wing ideologues. This argument also seems to have less to do with discerning congressional intent and more to do with protecting large corporations.
The Supreme Court is to decide if employers can escape liability for illegal discrimination by arguing that the EEOC failed to make a sufficiently good-faith attempt to reach a settlement with the employer.
Mach Mining has never hired a woman for a mining position. A woman who had been turned down several times for a coal mining job filed a sex discrimination complaint with the Equal Employment Opportunity Commission, a step that Title VII requires before filing a lawsuit. EEOC looked into the allegation, found it had merit, and – again, as required by Title VII – sought to negotiate an end to the alleged sex discrimination “by informal methods of conference, conciliation, and persuasion” before suing. After several months without success, the EEOC notified the company that it felt further efforts would be futile and initiated a lawsuit. Mach Mining says the case should be dismissed on the grounds that the EEOC didn’t make a good-faith conciliation effort. In response, the EEOC says Title VII doesn’t allow such a defense.
While several other circuits have ruled otherwise, the Seventh Circuit in this case concluded that Title VII cannot be interpreted to allow courts to inquire into the adequacy of the EEOC’s conciliation efforts. For one thing, Title VII has no express provision for an affirmative defense based on a defect in the EEOC’s conciliation’s efforts. It also calls for the EEOC to “endeavor” to end the discrimination through “informal methods of conference, conciliation, and persuasion.” If it can’t reach a result “acceptable to the Commission,” it can sue. The Seventh Circuit interpreted this as giving the EEOC great deference.
The court also noted that Title VII makes the process confidential, with penalties for making the information public without the consent of everyone concerned. That could prevent the EEOC from showing the court the evidence that it had sought to conciliate in good faith. It seems unlikely that Congress wrote Title VII to require the EEOC to defend its conciliation efforts in court but made its ability to do so dependent on the permission of the employer being sued. The court also concluded that there would be no meaningful standard of review. For instance, just how hard should the agency pursue an agreement?
A Supreme Court ruling for the employer could give employers a significant tool to stymie legitimate lawsuits against unlawful employment discrimination. As the Seventh Circuit wrote:
Simply put, the conciliation defense tempts employers to turn what was meant to be an informal negotiation into the subject of endless disputes over whether the EEOC did enough before going to court. Such disputes impose significant costs on both sides, as well as on the court, and to what end?
All the employer should legitimately hope to gain is some unspecified quantum of additional efforts at conciliation by the EEOC. The result of such a defense, as we have said in a closely related context, is to “protract and complicate Title VII litigation, and with little or no offsetting benefit.”
The Supreme Court is to address whether a state prison’s prohibiting a Muslim prisoner from growing a half-inch beard violates the federal Religious Land Use and Institutionalized Persons Act.
This case originated with a handwritten request to the Supreme Court from Gregory Holt (aka Abdul Maalik Muhammad), a Muslim prisoner in Arkansas, to hear his case. He states that his religious beliefs require him to have a beard, and he seeks to grow a half-inch beard. The state Department of Corrections prohibits beards generally, but allows quarter-inch beards grown for medical reasons. Muhammad sees his request as a compromise (since his religious beliefs really would have him grow it much longer) that has been accepted in prisons elsewhere.
Since he is in a state prison, Muhammad’s case is governed by a federal law called the Religious Land Use and Institutionalized Persons Act, or RLUIPA. Passed unanimously by Congress in 2000, RLUIPA requires prisons accepting federal funds to give greater religious liberty protections to inmates than is required by the First Amendment’s Free Exercise Clause. Similar to the better-known Religious Freedom Restoration Act (RFRA), which was at issue in Hobby Lobby, RLUIPA is triggered when the government imposes a “substantial burden on the religious exercise” of a person confined to an institution. When that happens, the action can be upheld only if the government can demonstrate that the burden: “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
The state argues that the no-beard policy furthers the compelling government interests in prison safety and security, and that the proposed half-inch accommodation would not be as effective as the no-beard rule in achieving those purposes. For instance, they provide the opinions of penal experts that prisoners could use the beards to hide contraband, and that escaped prisoners could too easily and quickly change their appearance simply by shaving. Muhammad (now represented by counsel) argues that the lower courts, which ruled against him, did not provide the strict scrutiny of the state’s arguments that is required by RLUIPA.
In Hobby Lobby, the Supreme Court significantly rewrote RFRA, watering down the “substantial burden” requirement and applying the religious liberty law to for-profit corporations. Neither factor is relevant to this case, meaning the Court could rule in favor of Muhammad without rewriting the law. But the Roberts Court is known for playing the “long game.” Even if the Court rules unanimously for Muhammad, they may not all agree on the reasoning: The conservatives could write an opinion designed to be cited in future RFRA litigation strengthening the hands of those on the right who would reshape RFRA from a shield against government oppression into a sword.
The Supreme Court is to address whether Alabama engaged in unconstitutional racial gerrymandering when it drew new state House and Senate district lines that channeled large numbers of African Americans into districts that were already majority-minority.
The GOP-controlled Alabama state legislature enacted a redistricting plan that transferred a significant portion of the black population that had previously been in majority-white districts into districts that were already majority-black. In so doing, the legislature was seeking to achieve certain percentages of black voters in the majority-black districts. At issue is whether legislators engaged in an unconstitutional effort to separate voters by race, or whether they followed traditional redistricting criteria in a way that was necessary to comply with the Voting Rights Act.
Due to population shifts, majority-black districts established after the 2000 Census lost population and had to be redrawn after the 2010 Census to bring in new people. In some cases, the population loss was disproportionately white, meaning that a significantly higher percentage of the remaining population was African American than before. In redrawing the lines while keeping the same number of majority-black districts, the legislature made two decisions that led to what some call “bleaching” – drawing lines so that large numbers of African Americans in majority-white districts would be redistricted into supermajority-black districts, and diminishing African Americans’ political influence in much of the state.
First, they chose to reduce the permissible population difference between districts from 10% (the 2000 standard) to 2%. To achieve district populations that close to each other, many more people would have to be drawn into the modified black-majority districts than would otherwise have been necessary. That huge numbers of those people would be blacks removed from majority-white districts was determined by the second decision: Ostensibly to comply with the requirement under Section 5 of the Voting Rights Act (this was before Shelby County) that new lines not lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise, the African American percentages in the redrawn majority-minority districts should be at least whatever they had become in 2010.
This reapportionment was upheld by a divided three-judge federal district court. The majority concluded that race was not the predominant factor in drawing the redistricting boundaries, so that they need not be analyzed under strict scrutiny as in the 1993 Shaw v. Reno case. The majority also concluded that even if strict scrutiny applied, the legislative boundaries were narrowly tailored to achieve the compelling purpose of compliance with the preclearance provisions of Section 5 of the Voting Rights Act, which applied at the time. The plaintiffs in this case – the Alabama Legislative Black Caucus and state Democrats – challenge those conclusions, arguing that legislators had misinterpreted Section 5, that race was impermissibly the overriding criterion used by legislators in drawing lines, and that the redistricting plan violated the Fourteenth Amendment.
FREE SPEECH AND SIGN REGULATIONS
The Supreme Court will hear a church’s Free Speech challenge to city rules regulating the size and placement of various types of signs, which affect the signs it puts up to direct people to its church services.
This case was brought by a small church (25-30 adult members) in Arizona that places signs up to invite people to its weekly services and inform them where they are being held. Good News Church and its pastor Clyde Reed are urging the Court to strike down the town of Gilbert’s sign ordinance, which treats some signs (such as directional signs for events, like a fair or, in this case, a church service) differently from others (like political, real estate, or ideological signs). The different types of signs have different rules on how large they can be, and where and when they can be posted. Good News Church argues the law is an unconstitutional content-based infringement of its First Amendment rights. The lower court had upheld it as content-neutral.
Gilbert regulations generally require a permit before posting a sign, with a number of exceptions that can be posted without a permit. These exceptions (each with specific size, number, and placement rules) include construction signs, open house signs, parking signs, building identification signs, garage sale signs, street address signs, and restaurant menu signs. The church devotes much of its focus to three of the exceptions:
The church has signs in the first category to tell people about their weekly church services in the space they rent. The maximum size is smaller than political and ideological signs, fewer can be posted, and they cannot stay up nearly as long. Represented by the far-right Alliance Defending Freedom, Good News Church argues that the city is violating its First Amendment rights by applying different rules to different types of noncommercial signs based on their content. According to the church, any classification based on what a sign says is content-based and therefore subject to the highest level of scrutiny. And if the law’s purpose is, say, to promote traffic safety or aesthetics, then what difference should it make if the sign is for a church service, political candidate, or particular ideology?
A divided panel of the Ninth Amendment disagreed, ruling against the church. It said the distinctions among different types of signs are content-neutral (and thus subject to a somewhat lower level of scrutiny) because Gilbert’s interests in regulating temporary signs are unrelated to the specific content or message of the sign. Each exemption is based on objective criteria related not to the sign’s message, but to the reason for the exemption (such as need for communication about elections, or the need to let event sponsors inform people how to get to the event).
HOLDING FRAUDULENT CORPORATIONS ACCOUNTABLE
The Court is to decide whether the clock stops on a deadline to sue for securities fraud when someone files a class action suit.
This case relates to a key 1974 precedent called American Pipe & Construction Co. v. Utah, where the Supreme Court ruled that the filing of a class action lawsuit stops the clock (“tolls” in legal parlance) on the statute of limitations on filing federal antitrust claims for all potential members of the class, including those who are not actively involved with or even aware of the class action lawsuit. So if a court then doesn’t certify the class for some reason or dismisses its claims, but makes that decision after the statute of limitations has passed, those who would have been included in the class have not lost their opportunity to have their day in court just because they hadn’t made an individual filing in the case.
The current case relates to the financial meltdown of the 2000s and involves federal laws in the Securities Act of 1933 prohibiting sellers of securities from misleading investors. The law has two key time limits: (1) You generally have one year to file a lawsuit, and that can be a year after the untrue or misleading statement is made or discovered. (2) But there is an additional limit, one that restricts just how long after the fact you have to discover the wrongdoing: “In no event shall any such action be brought … more than three years after the security was bona fide offered to the public [or, depending on which section of the law is involved] more than three years after the sale.” The Second Circuit concluded that the American Pipe rule did not apply to this statute.
One of the great benefits of class action litigation is that it protects the rights of people who cannot afford to themselves engage in litigation and may not even realize they have been wronged. It also vastly enhances our society’s ability to hold large corporations responsible when they violate people’s rights. The rule from American Pipe has served that purpose well. But in other contexts, the Roberts Court has significantly undercut the ability of Americans to utilize class actions to protect their rights. If the Court rules that American Pipe doesn’t apply in the securities fraud context, it will be important to see if its reasoning also undercuts American Pipe as a precedent in other contexts.
The Court is to address what investors need to prove to hold companies accountable for material misstatements in investment material.
When responding to a public offering of company shares, investors may rely on a company’s registration statement with the Securities and Exchange Commission. Under Section 11 of the Securities Act of 1933, investors can sue if that statement “contained an untrue statement of a material fact or omitted to state a material fact [that was] necessary to make the statements therein not misleading.” This case asks what investors need to prove if the purportedly “untrue statement” was the company’s opinion that it wasn’t breaking the law.
Omnicare is the nation’s largest provider of pharmaceutical care for the elderly and other residents of long-term care facilities. In Omnicare’s registration statement, it said that “we believe” that its financial relationships with pharmaceutical manufacturers were legal. The investors here claim that some of those deals constituted unlawful kickbacks. The question is whether that allegation is enough to trigger Section 11.
According to Omnicare, for the investors to have a claim under Section 11, they have to allege that Omnicare didn’t believe the statement when it was made. Otherwise, companies could be held liable for statements of opinion that turn out later not to be true. Two circuit courts have taken that view.
But in this case, the Sixth Circuit took a different approach, one that makes it easier for investors to file a Section 11 claim. That court reasoned that Section 11 is a “strict liability” statute where the state of mind of company officials isn’t relevant, so it’s sufficient to allege that the opinion was false, regardless of whether the company knew at the time it was false. That’s the ruling the investors in this case are asking the Supreme Court to uphold.
In an amicus brief, the Obama Administration takes a middle ground, in which the company isn’t held liable only because it expressed an opinion that turned out not to be true. The Administration argues that a statement of opinion is actionable under Section 11 if: (1) the company didn’t believe it at the time (which both parties in this case agree on), or (2) there was no reasonable basis for the opinion at the time, even if it was sincerely held (which Omnicare disagrees with).
Any ruling by the Roberts Court should keep in mind that Congress enacted Section 11 to encourage maximum disclosure by companies making a public offering. After all, people associated with the company know far more about the business than potential investors could ever know, and Section 11 was intended to dissuade corporations from tricking investors.
Just as the Lochner case defined the Supreme Court a century ago as it turned conservative economic policies into constitutional dogma, America finds itself living through the Citizens United era, where the Court again routinely rules in favor of corporate and other powerful interests. By the end of June, we will know if the current term will have been as damaging to Americans’ fundamental rights as recent terms have been.
The following is a guest blog by Beth Huang, 2010 Fellow of People For the American Way Foundation’s Young People For program.
Last Monday, the Supreme Court ruled in two critical cases with major implications for working women. The Supreme Court ruled once again that corporations are people, this time conferring religious rights that trump workers’ rights to access full healthcare. In a dissent to the Burwell v. Hobby Lobby ruling, Justice Ruth Bader Ginsberg noted “that the cost of an IUD is nearly equivalent to a month's full-time pay for workers earning the minimum wage.” Justice Ginsberg’s dissent reveals the real impacts of denying coverage of contraception for low-wage working women -- something the slim five-justice, all-male majority fails to comprehend.
To compound the attack on working women, five male Justices severely undermined the ability of care workers – 95 percent of whom are women – to collectively bargain in the case Harris v. Quinn. This assault on working people stems from the Justices’ view that the care workers in the case are not “real” public employees and thus the union cannot charge the appropriate agency fee to all of them for its bargaining services. This ruling serves the interests of anti-worker extremists at the expense of these invaluable workers who care for our families and our children.
It’s clear: a majority of Justices are trampling over the rights of working women. In light of these attacks, it’s time to organize for gender equity and economic justice for working women.
Back in 2010 when I was a student, Young People For helped me develop organizing skills that have led me to effectively advocate for and with women and workers. Through my work in student labor organizing as an undergraduate and since graduation, I have seen that workers’ rights are women’s rights, from having access to comprehensive healthcare to having a voice on the job. To build an economy that works for today’s students and youth, we need to organize locally and train new leaders in the broad effort to advance our agenda for gender equity and economic justice.
At the Student Labor Action Project a joint project of Jobs with Justice and the United States Student Association, we’re doing just that by building student power to advance an agenda that protects the rights of current workers and promotes a more just economy for students to enter when they graduate. Our campaigns focus on demanding funding for public higher education, which we know is a major source of good jobs and upward mobility for women and people of color; pushing back on Wall Street profits that fuel the student debt crisis; and raising the working conditions for Walmart workers, 57 percent of whom are women.
The Supreme Court’s decisions last week underscored the urgency of organizing for these changes. Women’s access to equal rights, power in the workplace, and comprehensive healthcare depends on it.
Crowds of activists and advocacy groups gathered outside while the Supreme Court heard oral arguments Tuesday in the Sebelius v. Hobby Lobby Inc. case.
Justices Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg did not shy away from asking difficult questions that demonstrate the broad implications this case could have. Justices Sotomayor and Kagan voiced concerns regarding the implications of a ruling for the first time in our nation’s history that for-profit corporations have religious rights. Both justices questioned whether this decision would allow companies to deny access to coverage of not only contraceptive methods, but also of other lifesaving procedures employers might object to on religious grounds—like blood transfusions or vaccines.
The Huffington Post quotes Justice Kagan as saying, “There are quite a number of medical treatments that could be religiously objected to… Everything would be piecemeal, nothing would be uniform.”
Pushing the issue further, Justice Sotomayor asked, “How are courts supposed to know whether a corporation holds a particular religious belief?”
Similarly, Justice Ruth Bader Ginsburg stated that the Religious Freedom Restoration Act
was a law that was passed overwhelmingly [by] both houses of Congress. People from all sides of the political spectrum voted for it. It seems strange that there would have been that tremendous uniformity if it means [corporations are covered].
[T]here was an effort to adopt a … specific conscience amendment in 2012, and the Senate rejected that… That amendment would have enabled secular employers and insurance providers to deny coverage on the basis of religious beliefs or moral convictions. It was specifically geared to secular employers and insurance providers. And that…was rejected.
Justice Kagan noted that RFRA was considered non-controversial when it passed, an unlikely reaction if it had been understood to open the door to employers citing religious objections to complying with laws relating to sex discrimination, minimum wage, family leave, or child labor.
Justice Kagan also noted that women are “quite tangibly harmed” when employers don’t provide contraceptive coverage. This decision, however, could have far-reaching implications beyond women’s reproductive rights since this case deals with some of the same core issues seen in “right to discriminate” bills like Arizona’s, as we pointed out yesterday morning.
Last month, as Arizona governor Jan Brewer deliberated whether to sign or veto a law that would have allowed businesses to discriminate against LGBT customers, the public outcry was immense. Senators Jeff Flake and John McCain shared their opposition via Twitter. Companies including American Airlines, Apple, and AT&T urged a veto. Multiple state senators who had voted for SB 1062 asked Gov. Brewer to veto it. When she did, advocacy groups praised the decision and many in Arizona and across the country breathed a well-deserved sigh of relief.
But it turns out that sigh may have been premature.
This morning the Supreme Court will hear arguments in Sebelius v. Hobby Lobby Stores, Inc., a case that, on its face, appears to be dealing with a different issue – women’s access to contraception – but in fact grapples with some of the same core issues in play with “right to discriminate” bills like Arizona’s. In the Hobby Lobby case, as in its companion case Conestoga Wood Specialities v. Sebelius, corporations are trying to avoid complying with the contraception mandate of the Affordable Care Act. But both the Supreme Court cases and the “right to discriminate” bills address the question of whether for-profit corporations have religious rights and can use those “rights” in a way that brings harm to others.
Comparing the vetoed Arizona bill to efforts to let companies deny covering contraception, National Women’s Law Center vice president Emily Martin put it like this: “What you’re seeing in both cases are corporations asserting the right to break the law in the name of religion, even if it results in harm and discrimination for third parties.” And The New Yorker’s Jeffrey Toobin noted,
Indeed, a victory for Hobby Lobby might bring in an Arizona-style rule through the back door….The Arizona law and the Hobby Lobby case represent two sides of the same coin. Both assert that the invocation of a religious belief allows a company to opt out of a government requirement that applies to everyone else.
But corporations have never had religious rights, and as affiliate PFAW Foundation senior fellow Jamie Raskin wrote in a recent report, that concept is simply “absurd.”
[I]t is time for the Court to restore some reality to the conversation. Business corporations do not belong to religions and they do not worship God. We do not protect anyone’s religious free exercise rights by denying millions of women workers access to contraception.
As we know, pastors Kevin Swanson and Dave Buehner of Generations Radio are no fans of birth control. In fact, Swanson believes that “little tiny fetuses, little babies” are “embedded” into “those wombs of women who have been on the birth control pill.”
Reacting to the news that the FDA has decided to make the morning-after pill available without a prescription to women ages 15 and older, Buehner called the move an attempt “to destroy the patriarchal structure of the family” as part of its “war against God’s family structure.”
According to Buehner, the Bible makes it clear that an unmarried woman “doesn’t have the feminist independence that we hear so much about to make contracts, to buy drugs, to engage in activities without the father’s consent,” as naturally the father should know “what drugs his daughter’s putting into her body” and “whether or not his daughter is out there fornicating with the football team.”
When the government does something like this, their intentions, their self-conscious intention, is to destroy the patriarchal structure of the family. The Book of Numbers is very clear and the Book of Numbers says that ‘when the father hears the vow of his daughter, an obligation to which she’s bound herself, if the father says nothing then the vow stands; but if the father should forbid her on the day he hears of it then none of her vows, none of her obligations of which she has bound herself, shall stand.’ What that means is that a father who has a daughter, she’s not free, she doesn’t have the feminist independence that we hear so much about to make contracts, to buy drugs, to engage in activities without the father’s consent. Now when you tell the father he has no business knowing what drugs his daughter’s putting into her body, when a father has no business knowing whether or not his daughter is out there fornicating with the football team, you’ve destroyed patriarchy even more. I think the government is waging a war against God’s family structure.
Swanson took it one step further by alleging that a new strain of gonorrhea is divine punishment for sexual immorality.
“God is in control and he can send a superbug to wipe out a lot of people who are engaged in this kind of sexuality and if that be the case then I guess we don’t need a political magistrate to do that work for us,” Swanson said.
He knows what’s going on and he will exercise perfect justice and nobody, nobody, nobody is going to get away with this kind of thing. Dave, you mentioned the rise in STDs, sexually transmitted diseases are going to rise I think significantly for 15, 16, 17 year old girls and here’s an article that just came out yesterday: ‘Sex Superbug Could Be Worse Than AIDS.’ It’s an antibiotic resistant strain of gonorrhea and it could knock of these kids in three days. It’s apparently a very virulent disease, it’s a super bug; they consider it a super bug. ‘Some analysts say that the bacteria’s affects could match those of AIDS. This might be a lot worse than AIDS in the short run because the bacteria is more aggressive and will affect more people quickly…. Even though nearly 30 million people have died from AIDS-related causes, Dr. Christianson believes the effect of the gonorrhea bacteria is more direct. Getting gonorrhea from this strain might put someone in septic shock and death in a matter of days. This is very dangerous.’ Apparently it has hit Hawaii, California and Norway thus far.
This idea that somehow that we are safe and technology can take care of us and we can take a pill for this and a pill for that and everything is going to be hunky-dory and you can get away with whatever kind of sexual activity you want to get away with, there is a God in the heavens, there is a God in the heavens. I know that the average American doesn’t believe that anymore. They don’t fear God, the beginning of wisdom is not the fear of God in these schools, they don’t teach the beginning of knowledge and wisdom is the fear of God in sex-education classrooms. They say, ‘well you know you might get an STD,’ but then the really smart guy says, ‘well that’s alright these government agencies can figure out a way to solve these problems and so I don’t have to worry about any of this.’ Friends, ultimately God is in control and he can send a superbug to wipe out a lot of people who are engaged in this kind of sexuality and if that be the case then I guess we don’t need a political magistrate to do that work for us.
Buehner predicted that within a decade elementary and middle schools will be putting the morning-after pill in vending machines as more and more women have trouble coping with the ramifications of putting “the bullet into the baby’s head.”
Swanson: A lot of these liberals are more than happy to provide abortion and it doesn’t really matter how these girls got to be pregnant, the point being that these little girls can be messed up sexually in so many different ways but society wants to be sure that the child is done away with in the process.
Buehner: Yeah, obviously the goal here is to kill, to keep children from being born, that’s what the pill does, that’s what its point is, to keep children from being born. Now one of the things about the day-after pill is a girl doesn’t know if she’s pregnant, she doesn’t know if conception happened so gets it, she’s like the one in the firing squad, there’s usually one person in the old firing squad who had a blank, she gets the comfort of knowing perhaps that she had the blank and she didn’t actually put the bullet into the baby’s head.
So there is the killing aspect of this but you’re right if the winds of society don’t change the direction they’re blowing not only do I see that this FDA ruling will stand, I believe it will go all the way to the judges’ utopian idea that girls, if they can ask for it they can get it. In fact, I believe you will probably see within a decade that this will be available in vending machines in elementary and junior highs in the near future, within about ten years or so, you just go to the vending machine, put in your fifty cents, get your day-after pill and go on about your life. The social consequences are catastrophic.
The Family Research Council hosted a panel discussion Wednesday on religious liberty in America. If you have paid any attention at all to the frantic warnings from FRC’s Tony Perkins that tyranny is on the march, you could have guessed what was coming. The overall theme of the conversation was that the HHS mandate for insurance coverage of contraception is a dire threat to religious freedom in America. So are the advance of marriage equality and laws against anti-gay discrimination – or the “sexual liberty agenda.”
The panel featured three lawyers: Adele Keim of the Becket Fund for Religious Liberty, Kellie Fiedorek of the Alliance Defending Freedom (formerly known as the Alliance Defense Fund) and Ken Klukowski of the Family Research Council.
Keim talked about Becket’s client Hobby Lobby, which is suing the Obama administration over the contraception mandate. Or as Keim insisted on calling it, the contraception/abortifacient mandate. Keim argued that business owners are no less deserving of religious accommodation than churches or religiously affiliated nonprofits, saying “Americans do not lose their First Amendment rights when they go to work.” Of course by the standard she was invoking, many Americans could find their own rights and access to health care dictated by the religious beliefs of their employer.
The ADF’s Fiedorek focused on the “great peril” to religious liberty posed by the “agenda to expand sexual liberty and redefine marriage.” She said in the conflict between sexual liberty and religious liberty, "people of faith" are "the ones being marginalized." She recounted a litany of such “persecution,” including now-familiar stories of a New Mexico photographer and a Colorado baker who were penalized under state anti-discrimination laws when they declined to serve same-sex couples celebrating commitment ceremonies. Fiedorek compared cases in which businesses are required not to discriminate against gay couples to requiring an African American photographer to take pictures at a KKK event or a Jewish baker to create a cake decorated with a swastika. She called it “particularly atrocious” that Catholic social service agencies were being required to abide by anti-discrimination ordinances – and were being “forced” to close. She began and closed her presentation with quotes from the movie Chariots of Fire, ending with one that includes, “Don’t compromise. Compromise is a language of the devil.”
Klukowski talked about the role of religious freedom in the settling of America and the founding of the U.S. And he recycled ridiculous religious right charges that the Obama administration believes not in freedom of religion but in the narrower “freedom of worship,” a notion that he said would be “profoundly disturbing” to the founding fathers.
The most interesting question from the audience focused on implications of the Bob Jones University case, and on whether the racialist Christian Identity movement could make the same religious liberty claims the lawyers were defending. Why, the questioner asked, couldn’t the “conscience” rights the lawyers wanted for business owners not be claimed by a Christian Identity-affiliated business owner to deny doing business with African American people or interracial couples?
After a moment of awkward silence, Klukowski said that in the Bob Jones case, the Supreme Court had said the university could continue its racially discriminatory policies, but that its tax exemption was a benefit conferred by the government and could therefore be removed, especially in light of the post-civil war constitutional amendments addressing racial discrimination. Klukowski did not directly address whether and how that principle could, would, or should apply to the current conversation about anti-gay discrimination. He gave a confusing statement about what he said was the right of a business owner to throw someone out of their store for wearing a certain T-shirt or carrying a Bible. The First Amendment, he says, allows people to be jerks in their private lives, but it was not clear whether he meant that the relationship between a business and its customers was “purely private” or falls into the category of public accommodation.
People For the American Way Foundation’s Twelve Rules for Mixing Religion and Politics is grounded in our commitment to religious liberty and church-state separation, and in the recognition that fundamental constitutional values sometimes come into creative tension. Where to draw the lines in any particular situation can be a challenge, and even people who generally agree on constitutional principles may disagree about how they should apply on a given policy question. Nothing demonstrates this complexity more than the Obama administration’s efforts to ensure that American women have access to contraception and reproductive health services while addressing objections that such requirements would violate the conscience of some religious employers.
Religious Right groups and their allies at the U.S. Conference of Catholic Bishops have for months been portraying the Obama administration’s proposed rules requiring insurance coverage of contraception as totalitarian threats to religious liberty, even after the administration adjusted its initial proposal to address those concerns. Some Religious Right leaders are sticking with their ludicrous “tyranny” message even after the Obama administration today released a further revision that broadens the number of religious groups that will be exempt from new requirements while still guaranteeing women access to contraception.
In describing the policy proposal, HHS Deputy Director of Policy and Regulation Chiquita Brooks-LaSure told reporters, “No nonprofit religious institution will be forced to pay for or provide contraceptive coverage, and churches and houses of worship are specifically exempt.” Under the plan, women who work for such organizations would have access to no-cost contraception coverage through other channels.
Here’s where it gets interesting: The new proposal won praise both from Planned Parenthood and NARAL Pro-Choice America – and from right-wing ideologue Bill Donohue of the Catholic League, who called it “a sign of goodwill by the Obama administration toward the Catholic community.”
In contrast, the proposal was slammed by the far-right Family Research Council and Concerned Women for America – and by Catholics for Choice, which said, “While protecting contraceptive access under the ACA is a win for women, the administration’s caving in to lobbying from conservative religious pressure groups is a loss for everyone.” Catholics for Choice warned that a broadened exemption for religious groups “gives religious extremists carte blanche to trump the rights of others” and that women working at Catholic organizations “are wondering whether they’ll be able to get the same coverage as millions of other women, or if their healthcare just isn’t as important to the president as their bosses’ beliefs about sex and reproduction.”
James Salt, executive director of Catholics United, portrayed the approach as a win-win. “As Catholics United said from the very beginning, reasonable people knew it was right to be patient and hopeful that all sides could come together to solve this complex issue. The White House deserves praise in alleviating the Church’s concerns.”
Leading advocates for women’s heath praised the new approach. Cecile Richards of Planned Parenthood said the group would be taking a look at the details, but said “This policy makes it clear that your boss does not get to decide whether you can have birth control.” A statement from NARAL Pro-Choice America said the group“is optimistic that these new draft regulations will make near-universal contraceptive coverage a reality.”
Meanwhile, anti-choice advocates that have been pushing for rules that would exempt even individual business owners who have objections to providing contraceptive coverage for their employees complained that the new exemption would not extend to private businesses.
Concerned Women for America President Penny Nance said the new rules show Obama’s “intent to trample the religious liberties of Americans” and said, “When religious groups and individual Americans are forced to deny their deeply held religious convictions, it is not called “balance,” it’s called “tyranny.” The Family Research Council repeated Religious Right characterizations of the previous accommodation as an “accounting gimmick.”
People For the American Way believes that the government has a compelling interest in ensuring that women have access to family planning services. Indeed, Dr. Linda Rosentock, dean of the UCLA's school of public health and a member of the Institute of Medicine committee that was part of the review process on the HHS regulations, testified last year that the Centers for Disease Control has ranked family planning as one of the major public health achievements of the 20th Century.
People For the American Way is also deeply concerned about the efforts by Religious Right groups and its conservative Catholic allies to re-define “religious liberty” in unprecedented ways that would allow groups to take taxpayer dollars without abiding by reasonable regulations such as anti-discrimination requirements – and to allow private employers and others to claim exemption from all kinds of laws based on “religious” or “moral grounds.”
In this case, we believe the Obama administration has acted in good faith to promote the nation’s public health interests while addressing concerns that those policies might burden religious liberty. Our courts have long recognized that religious liberty, like the freedom of speech, is not absolute, and that policymakers must often balance competing interests. That is what the administration has done.