The government shutdown may have ended, but the hardline conservative attack on the Affordable Care Act hasn’t. In the coming months, the Supreme Court will decide whether to hear challenges brought by secular, for-profit corporations and their owners to a key provision of the ACA that requires certain employers to provide female employees with health insurance that covers all FDA-approved contraceptives. The ACA already exempts religious employers from the duty to provide contraceptive coverage, but these secular, for-profit corporations insist they are entitled to exemption as well. In its own challenge earlier this year, Hobby Lobby, an arts and crafts chain, succeeded in persuading the United States Court of Appeals for the Tenth Circuit to accept a truly remarkable proposition: that the corporate entity itself is a person exercising religion and is entitled, on grounds of religious conscience, to deny its female employees health insurance coverage for FDA-approved contraceptives. Two other federal circuits have rejected this analysis, and the Supreme Court has been asked to resolve the split between the federal courts of appeal. If, as is widely expected, the Court agrees to hear Hobby Lobby, the case will be vitally important on a broad range of issues: corporate personhood and the rights of business corporations, women’s health, employee rights, the role of religion in the workplace and more.
In the 225 years since the ratification of the Constitution, the Supreme Court has never held that secular, for-profit corporations are entitled to the Constitution’s protection of the free exercise religion. As we explain more fully in this legal brief and issue brief, it should not do so now.
From the Founding on, the Constitution’s protection of religious liberty has always been seen as a personal right, inextricably linked to the human capacity to express devotion to a God and act on the basis of reason and conscience. Business corporations, quite properly, have never shared in this fundamental aspect of our constitutional traditions for the obvious reason that a business corporation lacks the basic human capacities – reason, dignity, and conscience – at the core of the Free Exercise Clause. No decision of the Supreme Court, not even Citizens United, has ever invested business corporations with the basic rights of human dignity and conscience. To do so would be a mistake of huge proportions, deeply inconsistent with the text and history of the Constitution and the precedents of the Supreme Court.
The Obama administration recently offered more accommodations to the religious employers who oppose women’s reproductive freedom and seek exemption from the Affordable Care Act’s mandate that employee insurance coverage extend to contraception and sterilization. The employers won two big victories. First, the definition of religious employer was expanded to include not only organizations where everyone shares one faith but also those that employ or provide services to individuals who are not members of the same religious community. Second, the employers will not have to provide the coverage. Instead, the insurance companies will independently contact employees and make separate contraceptive policies available to them at no charge. The insurance companies will cover the costs of this new arrangement and, presumably, pass them on to other consumers.
The new rules are responsive to repeated and vociferous complaints about the president’s war on religion. As soon as the Secretary of Health and Human Services, Kathleen Sebelius, first announced that religious employers would be expected to provide contraceptive and sterilization coverage at no cost to employees, the nation’s Catholic bishops attacked the president for his unprecedented assault on religious freedom. Those critics ignored the fact that the idea of requiring employers to protect women’s equality by providing insurance was not new or unprecedented. Twenty-six states have similar laws, and the highest courts of New York and California upheld their women’s contraceptive equity statutes against First Amendment claims.
With the federal act currently under challenge in 45 lawsuits, however, the administration chose to compromise rather than to press the legality of its actions on behalf of women’s equality. The strategy of compromise has been unsuccessful. Even the new accommodations have not satisfied the administration’s critics. The Catholic bishops still believethat the president should compromise even more by extending the exemption to secular, for-profit corporations run by religious individuals. And Kyle Duncan, the general counsel of the Becket Fund for Religious Liberty, which has sponsored much of the litigation against the mandate, stated that the new rules do “nothing to protect the religious freedom of millions of Americans.”
By Leslie Griffin, Larry & Joanne Doherty Chair in Legal Ethics at the University of Houston Law Center
Before the Second Vatican Council (1962-1965), the Catholic Church condemned the separation of church and state and taught that only Catholics had the right to public worship and religious liberty. In a series of nuanced essays written from 1940-1965, the New York Jesuit Catholic priest John Courtney Murray developed a historical argument that the prohibition on separation was not a timeless, universal norm, but was best understood as a response to the anticlerical liberalism of modern Europe. Hence, Murray concluded, American Catholics could favor the separation of church and state even though Rome (mistakenly) opposed it. Senator John F. Kennedy consulted Murray as he prepared his famous 1960 campaign address to Houston Baptist ministers pledging his commitment to the separation of church and state. The speech set the stage for Kennedy’s election as the first Catholic president of the United States.
The bishops of the Roman Catholic Church approved the Declaration on Religious Freedom, Dignitatis Humanae(DH), at the last session of the Council in December 1965. DH changed prior Catholic teaching by affirming that religious liberty is the right of every human person, not a right of Catholics only. Murray was the lead drafter of the declaration.
Murray told reporter Robert Blair Kaiser in 1965 that the “resolution of the religious liberty issue had ‘transferential implications’ for those trying to work out the birth control question.” The “birth control question” asked if the church should revise its prohibition on artificial contraception. After extensive debate and reports from a papal commission, the church did not do so. Pope Paul VI instead reaffirmed the immorality of contraception in his 1968 papal encyclical Humanae Vitae(HV).
HV is the intellectual source of the Catholic Church’s current battle with the Obama administration over the provision of contraceptive insurance to its Catholic and non-Catholic employees. The church teaches that contraception is morally wrong as a matter of natural law for all men and women, Catholic and non-Catholic, married and non-married, without regard to whether they choose to believe or accept the teachings of the Catholic Church.
No one doubts that the bishops are sincere in their commitment to the anti-contraception moral principle. They are mistaken, however, to believe that the religious freedom protected by the U.S. Constitution entitles them to enforce their moral beliefs on others through force of law. Murray and Kennedy had a better sense of what the Constitution protects.
Consider the following scenario and ask yourself whether it is fair:
You live in California, work hard, pay taxes, and decide to pursue a public service career. You have a military background and apply for a job as a state corrections officer. Despite your qualifications, a state agency tells you that you must abandon your religion because of a demonstrably false assumption that you cannot comply with a purported safety requirement, which (as it turns out) is selectively enforced. An administrative body hears your case at a trial and determines that you suffered workplace discrimination, but the agency that refused to hire you flouts the ruling. As a last resort, you file suit in state court, and the office of the California Attorney General uses your taxpayer dollars to oppose you.
This is what happened to Mr. Trilochan Singh Oberoi, a Sikh American. Regrettably, more than a century after migrating to California, Sikhs in the most populous state in the nation still face regressive barriers to equal employment opportunity and the specter of being given the runaround by their own state government.
On November 10, 2008, after a two-day trial, the California State Personnel Board (SPB) determined that the California Department of Corrections and Rehabilitation (CDCR) discriminated against Mr. Oberoi, who was denied a job as a corrections officer because of his beard, based on his religious beliefs, which in part require him to keep his beard uncut.
By Saeed Khan, a former president of the Muslim Association of North Central Florida. Mr. Khan is a Gainesville, Fla., resident of more than thirty years where Pastor Terry Jones has drawn widespread attention for a planned burning of Qurans.The Dove World Outreach Center was established in 1986 in suburban Gainesville, Fla., where its current pastor, Mr. Terry Jones, assumed his role in 1996. America was attacked by a fringe group of terrorists on September 11, 2001. Almost eight years later, Pastor Jones decided that "Islam is of the devil" and this year he wants to burn the Quran, the Muslim's holy book, on the anniversary of 9/11.
What has happened during these years that convinced Pastor Jones to take these actions? Why did he not come out earlier against Islam?
As he toldThe New York Times, Pastor Jones has not read the Quran and he is not familiar with any aspect of Islam. Who is speaking in Jones's ear and using him to push their agenda? When it was first conceived in 2009, the building of the community center on 51 Park in New York City was not strongly opposed. In fact, all local authorities supported it. Even Fox News contributor Laura Ingram was for it. "I like what you are doing," she told Daisy Khan, proponent of the center. All of a sudden the dialogue has changed; now the center is being referred to as a mosque, to be built on the hallowed grounds of the World Trade Center. No matter that it is not a mosque and the site is not the World Trade Center but rather an empty blighted building two blocks away. Again I ask, what happened?
I maintain that these events are the result of old fashioned politics. In the absence of an alternative plan to improve the economy and win the wars, opponents of President Obama want to create an issue. Because his faith was already in question, his opponents want to make an issue about his purported faith. This tactic appears to be working. According to the Pew Research Center's national survey conducted this month, 18 percent of Americans think President Obama is a Muslim, a 7 percent increase since 2009. Now that they have maligned and criticized the faith, the next step is to instigate problems. Former House speaker Mr. Gingrich, commenting on Park 51, compared Islam to Nazism. "Nazis don't have the right to put up a sign next to the Holocaust museum in Washington. We would never accept the Japanese putting up a site next to Pearl Harbor. There is no reason for us to accept a mosque next to the World Trade Center." Mr. Gingrich even planned to join Dutch anti-Islamic politician Geert Wilders in New York on the anniversary of 9/11, an affront to the memory of Muslims who lost their lives in the World Trade Center on that terrible day.