Religious liberty

  • June 6, 2017
    Guest Post

    *This piece originally appeared on Take Care.

    by Douglas NeJaime, ACS Board of Academic Advisors, Professor of Law and Faculty Director, Williams Institute, UCLA School of Law and Reva Siegel, ACS Board Member and Nicholas deB. Katzenbach Professor of Law, Yale Law School.

    Religious exemptions from laws that require doctors to care for patients, employers to pay employees, or store owners to deal with customers in a respectful and nondiscriminatory way can hurt and demean citizens who do not share the claimant’s religious beliefs. Exemption claims of this kind are now spreading under the banner of religious liberty in the culture wars.

    Today, some conservatives are advancing expansive religious exemption claims to stigmatize contraception and restrict women’s access to it. Contraception is “the new abortion.” There are religious conservatives who call certain contraceptive methods “abortifacients,” even in cases where evidence shows that the methods do not operate in ways that satisfy their religious definition of abortifacients. Others oppose all methods of contraception as encouraging “a contraceptive mentality” that separates sex and reproduction.

    These claims about contraception are connected not only to abortion but also to same-sex marriage. As we documented in our 2015 Yale Law Journal article, “Conscience Wars,” many religious conservatives object to contraception, abortion, and same-sex marriage in part because they divert sex and marriage from procreative ends.

  • September 29, 2015

    by Jim Thompson

    Richard L. Hasen at Talking Points Memo contends that the future composition of the Supreme Court is “the most important civil rights cause of our time,” for it will determine the fate of many current civil rights struggles.

    In The Washington Post, Geoffrey R. Stone and Will Creeley urge colleges and universities to publicly reaffirm their commitment to free speech on campus.

    In Washington Monthly, Steve Sanders criticizes the Christian right for hijacking the term “religious liberty,” which once reflected a bedrock American value, and abusing it such that it “became just another synonym for bigotry.”

    G. Ben Cohen and Michael Admirand at the Harvard Law and Policy Review discuss the fallibility of finality in the legal system, especially in cases involving capital punishment.

    Eric M. Ruben and Saul Cornell in The Yale Law Journal argue that recent decisions to strike down bans on the public carrying of handguns are rooted in nineteenth century Southern opinions that reflect a regional, outdated conception of the Second Amendment.

  • January 21, 2015

    by Caroline Cox

    Zachary Roth of MSNBC reports that the Supreme Court could significantly narrow the scope of the Fair Housing Act in their ruling on a case scheduled for oral arguments today.

    At The Economist, Steven Mazie discusses the ruling in Holt v. Hobbs, a religious liberty case in which the Supreme Court ruled that a Muslim inmate has a right to grow a beard.

    Jeff Shesol writes in the New Yorker that the Supreme Court could strike down another campaign-finance law this term.

    At Talking Points Memo, Sahil Kapur looks at the consequences of a Supreme Court decision to overturn Affordable Care Act subsidies.

    Jamelle Bouie of Slate considers President Obama’s State of the Union address, calling it “an assertive vision of Democratic ideals.”

  • December 23, 2014

    by Nanya Springer

    Just because a prisoner relinquishes her freedom doesn’t mean she must also relinquish her freedom of religion. At least that’s the way it’s supposed to be, pursuant to the Constitution’s First Amendment.

    Unfortunately for Sakeena Majeed—and countless inmates in facilities throughout the U.S.—the fact that inmates retain their fundamental constitutional rights is either not well known, or simply not well respected. 

    Majeed argues in a recently filed lawsuit that upon her arrival to serve a 60-day sentence at the Cuyahoga County Jail in Cleveland, Ohio, a corrections officer told her attendance at weekly Christian prayer services was mandatory. When she objected to mandatory participation, explaining she was Muslim, the corrections officer threatened to send her to solitary confinement. Majeed was therefore forced to attend Christian services every Friday for the duration of her sentence, at one point being publicly mocked by another corrections officer for not actively participating in the worship.

    This is not a difficult case if the corrections officer is found to have coerced Majeed into religious practice. The Supreme Court has held repeatedly and unequivocally that the Constitution prohibits the government from compelling individuals to engage in religious practices, and that includes inmates. 

    Though not a difficult case, it is one that occurs far too often, as Rob Boston of Americans United for Separation of Church and State points out. Boston notes that coercing inmates to participate in faith-based programs and services is not an uncommon occurrence in American jails and prisons. Even following release, former inmates have been compelled to participate in religious-themed programs as a condition of parole.

    Majeed’s case is indicative of a broader trend, one in which government institutions abuse their authority by forcing religion on a captive and powerless population. Prisoners give up many rights, but their right to engage (or not engage) in a faith of their choosing isn’t one of them.  

  • October 21, 2013
    Guest Post
    by David H. Gans, Director of the Human Rights, Civil Rights, and Citizenship Program, Constitutional Accountability Center.
     
    * This piece is cross-posted at CAC’s Text & History Blog.
     
    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.