Religion clauses

  • 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.

  • September 19, 2012

    by Jeremy Leaming

    In what he called one of the first hearings in a long stretch of time exploring domestic acts of terrorism, Sen. Dick Durbin (D-Ill.) led a Senate hearing that included testimony from a young man whose mother was shot and killed in August while praying at a Sikh temple in Oak Creek, Wis. The senator noted early on that the massacre at the Gurdwara in Oak Creek was not an isolated incident, and that acts of violence against Sikhs, South Asians, Arabs, Muslims, and other communities of people are on the rise, and have been for some time.   

    Durbin, throughout the hearing, expressed concern that more action was needed to counter domestic violence targeting groups of people because of hatred toward their ethnicity, religion, sexual orientation or gender identity. He cited a 2010 FBI report showing that 6,600 hate crimes were reported in 2010. (That report revealed that a wide swath of communities was targeted by hate crimes. For example, the FBI said 47 percent of the crimes were racially motivated, 20 percent were triggered by hatred of the victims’ religion, 19 percent targeted the LGBT community, and 13 percent were based on ethnicity or national origin.)

    Durbin said those numbers are likely low. “In a 2005 study the Bureau of Justice Statistics believes even those crimes reported are just a fraction of those that actually occur. In the week following the Oak Creek shootings, there were numerous attacks on mosques, including a mosque burned to the ground in Joplin, Missouri. A shooting in a mosque in my home state, Martin Grove, Ill., while 500 worshipers were praying inside.”

    “According to the Justice Department,” Durbin continued, “the increase in discrimination against mosques since 2010 ‘reflects a regrettable increase in anti-Muslim sentiment.’ At the same time, African-Americans continue to be targeted by a majority of racially motivated hate crimes. Jewish Americans continue to be victims of religiously motivated hate crime. Latinos are the victims of most ethnically motivated hate crimes and hundreds of LGBT Americans are victims of violent hate crimes every single year.”

    Durbin and others who testified lauded the passage early in the Obama administration of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, which encourages partnerships between federal and state law enforcement officials to work more effectively against hate crimes. But the senator and others who testified suggested that more should be done by the DOJ to aggressively investigate hate crimes, to report on hate crimes, and that Congress should do more to help fund preventive measures, such as education and training initiatives for law enforcement officials.

    Likely expecting criticism from lawmakers who might argue that Congress should focus almost exclusively on international born terrorist threats, Durbin said that the government should not and would not lessen its efforts to defeat Al Qaeda. “But we can’t ignore the threat of homegrown, non-Islamic terrorism," Durbin said.

    Also speaking to an international community, some of which conflates protection of free speech with condoning criminal actions, Durbin said, “So let me be clear, under our Constitution we punish criminal acts, not free speech, no matter how offensive or hateful it might be.”

  • September 7, 2012

    by Jeremy Leaming

    We’ve heard it for decades from the Christian Right that the nation’s public schools are hostile to religion, prohibiting students from praying or engaging in other religious activities. It is rhetoric that has helped fuel the so-called culture wars. The rhetoric is also blatantly misleading.

    There were a couple of U.S. Supreme court cases in the 1960s that prohibited organized religious activities in the public schools. But neither case, regardless of the shrill cries of Christian Right leaders, prohibited truly voluntary student prayer. The concept was fairly straight forward. Public school officials are government employees and the First Amendment’s establishment clause bars the government from demanding that people, including students, pray or engages in religious activity. The free exercise clause of the First Amendment provides that government must be neutral toward religion and cannot take undue action to interfere with religious practices.

    So those two high court cases – Engel v. Vitale and Abington v. Schempp – did not ban religion from the schools. Students can pray in school on their own time, such as moments before a test, or with other students, as long as such activity is not disruptive of the school’s mission to teach reading, writing, math, history, and science.  

    Nonetheless, those high court cases have been twisted by Christian Right lobbying groups, such as Focus on the Family, the Family Research Council, American Family Association, and TV preachers such as Pat Robertson, to help their campaign to portray America’s public places, even limited ones like public schools, as hostile to Christianity. Government officials they often argue are bent on banishing religion and Christianity in particular, from the public square.

    The misinformation has caused great confusion in the public schools about religion’s proper place. But the First Amendment Center’s Charles Haynes, director of the Religious Freedom Education Project at the Newseum, has spent decades trying to straighten things up.

    In a piece for the First Amendment Center’s website, Haynes says progress is being made.

  • July 30, 2012
    Guest Post

    By Sarah Lipton-Lubet, ACLU Washington Legislative Office, and Brigitte Amiri, ACLU Reproductive Freedom Project. This piece is crossposted at the ACLU’s Washington Markup blog.

    A federal court in Colorado recently put a temporary halt on the implementation of the Obama administration’s contraceptive coverage rule, with respect to one company. The contraceptive coverage rule requires insurance plans to cover contraception and stop routinely discriminating against women. The decision, if upheld, could pave the way for businesses to use their owners’ religion as an excuse to discriminate. 

    Here’s what happened, in a nutshell: Hercules Industries is a manufacturer of heating, ventilation, and air conditioning products that employs 265 workers. It argued that the contraceptive coverage regulation violated the company’s religious liberty because its owners are opposed to the use of birth control. Two similar lawsuits have been filed by other businesses, one in Michigan and one in Missouri. 

    Businesses exist to make money through commercial activity. By definition, their purpose is profit, not religious exercise. And for decades, the Supreme Court has recognized that entering into commercial activity means accepting that your faith cannot be imposed on those you employ. But Hercules Industries seeks to upend that common-sense rule. In its place, it proposes a theory that would let a business owner’s beliefs trump protections designed to safeguard workers – a radical break from our laws as we know them.