Religion clauses

  • November 29, 2012
    Guest Post

    By Frederick Mark Gedicks, Guy Anderson Chair & Professor of Law, Brigham Young University Law School


    John Breen, Professor of Law at Loyola University Chicago School of Law recently criticized on the Mirror of Justice blog my ACS Issue Brief defending the Affordable Care Act’s contraception mandate, and several of his points require a response.

    1. Professor Breen, like many mandate opponents, refuses to recognize that employers’ free exercise of religion rights are not the only liberties at stake in this conflict. Using the Religious Freedom Restoration Act (RFRA) to exempt employers from the mandate would deny their employees contraceptive coverage without-cost sharing under employer health insurance plans. Employees would be denied this benefit because of religious beliefs they do not share. This is an obvious intrusion on employee liberty in general -- it denies employees covered by an employer health plan their statutory right to no-cost contraception coverage under the ACA -- and an obvious intrusion on their religious liberty in particular -- it imposes the burdens of observing the employer’s religious beliefs on employees who do not share them. The fact that employees would remain free to purchase contraceptives with their own money is no justification for loss of the statutory right to contraceptives without spending their own money.

    Professor Breen maintains that no government action is involved when employers are exempted from the mandate -- indeed, that government action is “entirely absent” when an employer decides “to refrain from paying for contraceptives under its health plan.” But an employer may make this decision to violate the mandate, if at all, only because it is permitted to do so (a) by RFRA as (b) applied by a judge. These are both government actions that, in the event, would result in an intrusion on employee liberty.

  • November 26, 2012

    by Amanda Simon

    The Supreme Court today revived challenges to the Affordable Care Act’s employer mandate and contraceptive coverage provision. The challenge, brought by Liberty University, has now been given new life. With its 5-4 ruling in June, the Court held that the ACA and its coverage provisions were constitutional. Now, the future of the mandate is a bit hazier.

    Though the Fourth Circuit Court of Appeals dismissed the case, Liberty University v. Geithner, in September, the Supreme Court today ordered the appeals court to rehear the challenge, opening the door to what could be a significant legal battle. Liberty University, a Christian college founded by the controversial TV preacher Jerry Falwell, brought the suit saying the ACA violated its First Amendment rights as well as the Religious Freedom Restoration Act by requiring the school to provide insurance that could be used for abortions.

    The Fourth Circuit based its dismissal of the university’s case on standing, saying it could not challenge a tax that had yet to be implemented. However, in its ruling on the ACA, Talking Points Memo reports, “the Supreme Court dismissed the standing argument, implicitly conceding that taxpayers may challenge the ACA’s mandates, even ones that have yet to take effect — providing Liberty an opening to move forward with its case.”

  • November 7, 2012

    by Jeremy Leaming

    State court judges in Iowa and Florida remain on the bench despite the fevered and well-funded efforts to remove them because of their involvement in rulings that rankled conservatives.

    In Iowa, State Supreme Court Justice David Wiggins, who was part of the majority in the 2009 Varnum v. Brien decision that supported marriage equality, retained his seat with about 55 percent of the vote. In Iowa 50 percent of the vote is needed to hold judicial seats. Some of the same organizations and individuals who successfully removed three other Iowa Supreme Court justices in 2010 – again for their involvement in advancing marriage equality – were targeting Wiggins. Typically judicial retention votes are intended for removing judges from the bench because of ethical breaches, corruption or incompetence. But religious right groups such as the National Organization for Marriage, the American Family Association and the so-called Iowans for Freedom committee abused the retention vote to go after judges for doing their jobs. But their efforts this time faltered.  

    Religious right activist Bob Vander Plaats, also involved with the Iowans freedom group, told the Des Moines Register that Wiggins’ retention vote of nearly 55 percent was “not a great validation for Justice Wiggins.”

    The newspaper noted that the other judges up for retention votes, but not targeted by the religious groups, retained their high court seats with vote “totals of more than 74 percent.” The Register surmises that the lower vote for Wiggins (pictured) might fuel another effort by religious right groups to target the other justices involved in the Varnum majority when they face retention votes in 2016. Plaats refused to speculate on those justices.

    In Florida an effort funded by a Super Pac of the billionaire rightwing Koch brothers also flopped. The brothers’ Super Pac had urged voters to remove three Florida Supreme Court justices, primarily for their involvement in scuttling a 2010 ballot measure declaring that Affordable Care Act would not the law in the Florida. (This summer, the U.S. Supreme Court upheld the constitutionality of the law’s integral provision, the one requiring most Americans starting carrying a minimum amount of health care insurance in 2014.)

    But Justices R. Fred Lewis, Barbara Pariente and Peggy Quince “easily” survived the retention votes, The Miami Heraldreports. As in Iowa, the justices only need a 50 percent vote to retain their seats. Despite “an unprecedented campaign” to dislodge the justices, The Herald reported that all three received “about two-thirds of the vote, with most votes counted.”

  • October 31, 2012
    Guest Post

    By Frederick Mark Gedicks, Guy Anderson Chair & Professor of Law, Brigham Young University Law School


    Fr. Robert Araujo, Professor of Law at Loyola University Chicago, and Richard Garnett, Professor of Law & Political Science at the University of Notre Dame, have posted critical reactions on Mirror of Justice to my ACS Issue Brief, “With Religious Liberty for All: A Defense of the Affordable Care Act’s Contraception Coverage Mandate.”

    Many of Fr. Araujo’s questions are answered in the Issue Brief, but one comment deserves a direct response. He suggests that I have elevated statutory and regulatory claims to no-cost contraception under the Affordable Care Act over more fundamental constitutional claims under the Free Exercise Clause, which he believes is violated by the mandate. One hears this free exercise rhetoric frequently from mandate opponents, but it misreads constitutional history and misunderstands the content of free exercise rights.

    The Free Exercise Clause does not protect a right of believers to be excused or exempted from complying with laws that generally apply to the rest of society, even when such laws burden their religious exercise. The Supreme Court has rarely recognized rights to free exercise exemptions, and then only in a few instances between the early 1960s and the late 1980s. The Court decisively rejected a general right to free-exercise exemptions in Employment Division v. Smith (1990), which it has repeatedly affirmed in the years since, most recently in Christian Legal Society v. Martinez (2010).

  • October 22, 2012

    by Jeremy Leaming

    The lawsuits lodged against the Affordable Care Act’s contraception coverage policy are resting on wobbly legal ground, says a Brigham Young University law school professor in a new ACS Issue Brief.

    In “With Religious Liberty for All: A Defense of the Affordable Care Act’s Contraception Coverage Mandate,” Frederick Mark Gedicks, a distinguished law professor at BYU, says the ACA’s requirement that employers ensure that their health care coverage provides access to contraceptives for women “strikes a careful and sensible balance of competing liberty interests by exempting religious persons and organizations who do not externalize the costs of their religious beliefs and practices onto others who do not share them.”

    Gedicks notes that the contraception coverage policy also “exempts churches who largely employ and serve persons of their own faith, but not religious employers who hire and serve large numbers of employees who do not belong to the employer’s religion or who otherwise rejects its anti-contraception values.”

    Earlier this year social conservatives attacked the ACA’s contraception coverage policy saying it would force them to trample their religious beliefs by providing free contraceptives to their employees. Even with the administration’s announcement that churches and religious orders would be exempt from the mandate for coverage of contraception, some religious employers continued to demand a broader exemption. When that did not occur religious employers began lodging lawsuits around the country on First Amendment grounds and on the claims that their rights pursuant to the Religious Freedom Restoration Act (RFRA) would be violated.