Religious Freedom

  • January 22, 2018
    Guest Post

    by Julie A. Werner-Simon, is a former federal prosecutor  

    *Reprinted with permission of LA Daily Journal, 1-10-18

    When a new pope is selected by the assemblage of cardinals at the Vatican, the papal conclave releases white smoke into the sky. There are no smoke signals at the U.S. Supreme Court, but if one had a good sense of smell on Monday, the scent of cake appeared to be wafting from the neoclassical edifice at 1 First Street. The Supreme Court rejected two petitions challenging the 5th U.S. Circuit Court of Appeals’ upholding of a Mississippi law that permits businesses, religious organizations and government employees (as well as other organizations and individuals) to refuse service to gay people, to people who identify with a gender other than that with which they were born, as well as people of any gender who have sexual relations outside of marriage. Barber v. Bryant, 17-547 and Campaign for Southern Equality v.  Bryant, 17-642. 

  • November 10, 2015
    Guest Post

    by Leslie C. Griffin, Boyd Professor of Law, UNLV Boyd School of Law

    Now that the Supreme Court has granted cert. in Zubik v. Burwell on seven related religious nonprofits’ cases, we will have an opportunity to learn if Hobby Lobby was a “decision of startling breadth,” as Justice Ginsburg predicted in her dissent. In Zubik, the religious nonprofits allege that the government’s accommodation of the contraceptive mandate of the Affordable Care Act (ACA) violates the Religious Freedom Restoration Act (RFRA). An important part of the case turns on what the Court views as a “substantial burden” on the exercise of religion.

    Under RFRA, a plaintiff must demonstrate as a threshold matter that the government substantially burdened his exercise of religion. Only then does the government have to meet the most difficult test in constitutional law, namely that its action constitutes the least restrictive means of serving a compelling government interest. If the courts make it easy for plaintiffs to prove a substantial burden, each and every federal law can be constantly put to this strict standard.

    The appeals courts in the nonprofit cases ruled that plaintiffs’ religious exercise was not substantially burdened by the accommodation. An Eighth Circuit opinion, however, suggests that those courts misread Justice Alito’s analysis in Hobby Lobby. Zubik will test just how deferential the Court intends to be toward religious plaintiffs who allege a substantial burden on their religion.

    Hobby Lobby’s Substantial Burden

    The contraceptive mandate of the ACA requires employers to include preventive health care services in their insurance coverage. Hobby Lobby involved a successful challenge to the mandate by religious for-profit employers who believe as a matter of faith that four covered contraceptives cause abortion. At the beginning of his opinion upholding the for-profits’ challenge, Justice Alito observed that if the employers did not provide contraceptive coverage, they would be taxed $100 per day for each affected employee, which could amount to $1.3 million per day and $475 million per year for employer Hobby Lobby, and $90,000 per day and $33 million per year for Conestoga Wood. That amount of money, Justice Alito concluded, is “surely substantial.”

    Responding to the argument that the employers need not provide insurance in the first place, Alito then identified an alternative substantial burden. If at least one of their employees qualified for a government subsidy on the health care exchanges, the companies would be fined $2,000 per employee per year, totaling $26 million for Hobby Lobby and $1.3 million for Conestoga. Still substantial, in Justice Alito’s eyes.

  • May 4, 2015

    by Caroline Cox

    At The New York Times, Jesse Wegman considers the lethal injection case before the Supreme Court and how “both the logic and the practice of the death penalty begin to collapse inward on themselves.”

    Nina Totenberg of NPR discusses the ruling in Williams-Yulee v. Florida Bar and its implications.

    David Savage reports in the Los Angeles Times on the oral arguments in the same-sex marriage cases and how opponents of marriage equality are arguing that marriage is not centrally about love or fedelity.

    At Hamilton and Griffin on Rights, Marci A. Hamilton reviews the history of the marriage equality movement and the religious freedom questions it raises.

    At Salon, Joanna Rothkopf profiles Marilyn Mosby, the Baltimore City state’s attorney that recently deemed Freddie Gray’s death a homicide.

  • April 15, 2015

    by Caroline Cox

    Cameron Miculka and Francel Blas report for USA Today that the Guam Attorney General is directing the public health department to begin to issue same-sex marriage licenses immediately. 

    In Salon, Jason Williamson takes a look at how the police commonly and unfairly detain African Americans for trespassing. 

    An appeals court has affirmed a dismissal of U.S. Senator Ron Johnson's lawsuit against the Affordable Care Act, reports Patrick Marley of the Milwaukee Journal Sentinel.

    Steven Mazie writes in The Economist's Democracy in America blog considers the challengers' arguments in the same-sex marriage cases set to appear before the Supreme Court.

    David A. Strauss, member of the ACS Board of Directors, considers in The Washington Post what the fight for "religious freedom" means for the broader fight for equality in the United States.  

    At Hamilton and Griffin on Rights, Leslie Griffin considers how the real problem is "the efforts of religious corproations, organizations and individuals to block progress on LGBT and women's equality."

    Lawrence Norden and Daniel I. Weiner consider at the blog for the Brennan Center for Justice the best way to turn the tide of dark money. 

  • April 7, 2015

    by Caroline Cox

    At Share America, Geoffrey Stone takes a look at the history of civil liberties during wartime.

    Dahlia Lithwick of Slate explains how arguments against same-sex marriage are impossible to reconcile with arguments in support of religious freedom acts.

    At The New Republic, Sam Eifling discusses the unusual circumstances that prompted Wal-Mart to oppose Arkansas’s proposed attack on gay rights.

    In The New York Times, Mitch Smith writes that the Wisconsin Supreme Court election has raised concerns about partisanship in the judicial branch.

    William Greider considers at The Nation how the Supreme Court decision in Hobby Lobby has provided inspiration for countless new conservative campaigns.

    Coral Davenport reports for The New York Times on how Laurence Tribe has become an outspoken – and unlikely – opponent of President Obama’s ambitious new plans to fight global warming.