RFRA

  • July 1, 2016
    Guest Post

    by William P. Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina School of Law

    *This post is part of the ACSblog symposium: Members of the ACS Board of Academic Advisors reflect on the 2015-2016 Supreme Court Term.

    Who knew that the United States Supreme Court considered itself a forum for alternative dispute resolution? In what may have been the most high-level effort ever to broker the settlement of a case, eight Supreme Court Justices essentially told the parties in Zubik v. Burwell and six other cases to work out their differences among themselves.  

    Never mind that the issue in Zubik had been deeply contested in numerous cases around the country; never mind that the Court had heard 90-minute oral arguments on the matter; and never mind that the Court had already attempted to encourage settlement by taking the unusual step of ordering supplemental briefing about how the rights of the challengers could be accommodated. The Court was still not ready to decide whether requiring entities, objecting on religious grounds, to providing notice in order to receive an exemption from the Affordable Care Act’s contraception coverage requirements violated the Religious Freedom Restoration Act.

    Of course, the Court’s unusual disposition [non-disposition?] in Zubik and its companion cases is readily understood as a product of a deadlocked eight-person court. After all, oral arguments in the case had foreshadowed that neither side had the necessary votes for an all-out win.  Moreover, unlike other 4-4 cases, the Court could not simply affirm the judgment of the lower court because, in this instance, there were multiple lower court decisions that had reached differing results. So unless it was going to hold the cases over for reargument, the Court had to take some action. Remand, with the instruction that “the parties . . . should be afforded an opportunity to arrive at an approach going forward,” was the path it chose.

  • March 31, 2015
    Guest Post

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    The controversy over Indiana’s recently enacted Religious Freedom Restoration Act shows the importance of context in understanding a law. The bill signed by Indiana Governor Mike Pence is very similar to the federal Religious Freedom Restoration Act (RFRA) and laws that exist in 19 states. But the timing of the enactment of the Indiana law and the rhetoric surrounding it give every reason to believe that it was intended to allow businesses in Indiana to discriminate against gays and lesbians based on claims of religious freedom. Governor Pence reinforced this impression when on Sunday talk shows he repeatedly refused to deny that it would have exactly this effect.

    Governor Pence constantly emphasizes that the Indiana law is much like the federal RFRA signed by President Clinton in 1993. He stresses that nothing within the Indiana law expressly authorizes discrimination against gays and lesbians.

    That is true, but Governor Pence and supporters of the Indiana law are ignoring its context. Why is Indiana adopting the law now, 25 years after Employment Division v. Smith changed the law of the free exercise clause and 22 years after the enactment of the federal RFRA?

    It is clear that Indiana’s goal is to permit businesses to discriminate against gays and lesbians. Last June, in Burwell v. Hobby Lobby, the Supreme Court for the first time held that secular corporations can claim to have a religious conscience and free exercise of religious belief. In fact, the protection of corporations and businesses is much more explicit in the Indiana RFRA than in the federal statute.

    The Indiana RFRA comes soon after the decision of the United States Court of Appeals for the Seventh Circuit declaring unconstitutional the Indiana law prohibiting same-sex marriage and soon before the Supreme Court is likely to recognize a right to marriage equality for gays and lesbians. It is telling that repeatedly in his interviews, Governor Pence refused to deny that the Indiana law would have the effect of permitting businesses to discriminate based on sexual orientation. He also was emphatic that there would be no expansion of rights for gays and lesbians on his “watch.”

    This is why there are loud protests against the Indiana law and calls for boycotts of Indiana. If Indiana does not mean to allow such discrimination based on sexual orientation, it should amend the law to provide that no one can discriminate against others based on race or sex or sexual orientation or religion based on the statute or on the grounds of religious beliefs. 

    Governor Pence has refused to say that he favors such an amendment to the law. He can’t have it both ways:  either the Indiana law was meant to allow discrimination against gays and lesbians and the vehement objections to it are justified, or the law was not meant to permit discrimination against gays and lesbians and it should be amended immediately to say this. Discrimination in the form of the refusal to do business with a person because of his or her religion or race or sex or sexual orientation is wrong whether based on religion or anything else. Until Governor Pence and the supporters of the law recognize this and amend the law to say this, the protests and boycotts are justified.

  • June 30, 2014
    Guest Post

    by Alex J. Luchenitser, Associate Legal Director for Americans United for Separation of Church and State

    Two things stand out to me about this morning’s 5-4 decision in Burwell v. Hobby Lobby Stores that the Religious Freedom Restoration Act (RFRA) grants “religious” for-profit corporations an exemption from regulations requiring businesses to include coverage for contraceptives in their health insurance plans:

    First, the majority opinion attempts to hold itself out as a limited, cautious one. A closer look, however, shows that it is no such thing.

    Second, even though Justice Kennedy joined the five-justice majority opinion, his separate concurring opinion indicates that he disagrees with the majority in important respects. In such circumstances, a Justice normally joins a colleague’s opinion only in part, at most. Justice Kennedy’s imprudent joinder of the majority’s entire opinion will likely lead to mischief and confusion in the lower courts.

    Applicability to for-profit corporations

    The majority’s analysis begins with the conclusion that RFRA protects the religious “beliefs” of for-profit corporations, even though it is quite doubtful that the senators and representatives who voted for RFRA expected it to extend that far.

    The majority attempts to “limit” its ruling on this issue by stating that it is addressing only closely-held for-profit corporations here, and that it is not deciding whether RFRA also covers publicly-traded corporations.  But a reading of the majority’s reasoning on this issue — including its explanation that the word “person,” as used in RFRA, is defined as covering all corporations by a law called “the Dictionary Act” — leaves no doubt that the same result will ensue in the case of publicly-traded entities.

    The majority’s real attempt to answer concerns about extending the coverage of RFRA to all for-profit entities is to say: “don’t worry about it,” it’s unlikely that a publicly-traded corporation will attempt to impose religious requirements on its employers because it probably won’t be able to agree internally on any particular religious belief. This should not be of comfort to employees.

    Perhaps smaller, minority religions will not be able to impose their religious views on employees through publicly-traded corporations. But there is no reason to be confident that the religious views held by the majority of persons wealthy enough to own stock, at least in a particular industry or field, won’t give rise to RFRA claims by large, publicly-traded entities. In other words, employees need only worry about being subjected to majority religious views, of the better-off.

  • February 14, 2013
    Guest Post

    by Doug Kendall, founder and president, Constitutional Accountability Center. This piece is crossposted at CAC’s Text & History Blog.

    One of the glaring things revealed by a review of the briefs in Shelby County v. Holder is the dearth of serious constitutional scholars in the fray supporting the conservative attack on the Voting Rights Act. On Shelby County’s side are the predictable array of political scientists like Abigail Thernstrom, election policy hacks like Hans von Spakovsky, and Reagan-era war horses like John Eastman. But where are the leading conservative constitutional thinkers on this – Mike McConnell, Eugene Volokh, Randy Barnett, Gary Lawson, and Steve Calabresi?  None of these bright-light conservative names grace the briefs on behalf of Shelby County and, so far, their silence has been deafening in the public debate.  As University of Kentucky law professor Josh Douglas has pointed out over at PrawfsBlawg, it’s really hard to find a credible academic to provide “balance” to a panel discussion on Shelby (though Cato’s Ilya Shapiro has gamely offered to fill this void).

  • January 22, 2013
    Guest Post

    by Sarah Lipton-Lubet, Policy Counsel, ACLU Washington Legislative Office

    It’s been 40 years since the Supreme Court protected a woman’s right to make a decision about whether to have an abortion, and some are still trying to take that right away. In the world of abortion politics that’s dismaying -- but certainly not shocking news.

    It’s been longer still since the Court first protected the right to contraception in Griswold v. Connecticut in 1965. And while many of us in the reproductive rights movement have long known that our opposition is keen to limit access to birth control as well, that largely came as news to the public. Watching in disbelief, many turned to activism as the availability of affordable contraception was attacked time and again this last year. Indeed, recently national attention has been laser-focused on birth control -- whether women should have insurance coverage for it, and what to do about the objections of employers who want nothing to do with it.

    The federal contraceptive coverage rule -- one of the greatest advances in women’s health policy in decades -- guarantees insurance coverage of birth control, with an exception for houses of worship. Right off the bat a small but vocal opposition came out swinging, arguing that the rule is an unparalleled violation of religious liberty. These groups did not only want a sweeping set of loopholes, they pushed -- and are still pushing -- for the rule to be dismantled altogether, so that no woman would have its benefits, no matter where she works.