News Law and Policy

Missouri Cheesemaker Wins Temporary Injunction Against ACA Birth Control Benefit

Jessica Mason Pieklo

Yet another federal court seems sympathetic to the argument that corporations have religious exercise rights.

A federal court in Missouri issued a temporary restraining order barring enforcement of the birth control benefit that would have required a for-profit dairy farming and cheese making business to ensure that employee insurance policies cover birth control methods approved by the FDA, including emergency contraceptives and copper IUDs, as well as related counseling for employees.

The lawsuit was brought by Charles N. Sharpe, founder and owner of Sharp Holdings. The company is also as a named plaintiff, as are two employees, Judi Diane Shaefer and Rita Joanne Wilson. As employees, Shaefer and Wilson pay a portion of the required health insurance premiums in the company’s self-insured plan and, according to the complaint, object to coverage for anything they believe to interfere with the implantation of a fertilized egg.

In issuing the injunction the federal court appeared sympathetic to the argument that the mandate is unconstitutional because it impermissibly “punishes” some institutions (i.e. for-profit businesses) by providing preferential treatment to other institutions (i.e. religious institutions) by way of exemption from the law. But to find such an argument appealing, let alone persuasive, the federal court must essentially compare apples to oranges and assume for-profit, secular businesses should be treated the same from a regulatory perspective, as religious institutions, a fact totally lost in Magistrate Judge David Noce’s order.

The order provides immediate cover for Sharpe and his business, but the fight is not finished yet. The court will hear additional arguments in the matter on January 14th.

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Analysis Law and Policy

The Supreme Court Could Give Religiously Affiliated Employers Even More Room to Discriminate

Jessica Mason Pieklo

A series of cases working their way through the courts could expand which businesses get a pass for offering employees discriminatory health and retirement benefits.

You may remember the Little Sisters of the Poor—that group of earnest nuns who challenged the process for accommodating religious objections to the birth control benefit in the Affordable Care Act. The Little Sisters, along with dozens of other religiously affiliated nonprofits, have continuously argued that the act of completing a form to be legally excused from complying with the law substantially burdens their religious rights.

Well, the Little Sisters remain tied up in litigation with the Obama administration over birth control, nondiscriminatory insurance coverage, and their religious objections to providing for both. But there’s more at stake here. To be clear, the Sisters are intent on doing everything they can to block comprehensive insurance coverage for their employees, and block third parties from providing it to them as well. But buried in litigation footnotes is a provision of employee benefits law that, if the Sisters and other religiously affiliated organizations get their way, will solidify another pass for discriminatory corporate practices beyond contraception coverage alone.

The Employee Retirement Income Security Act, or ERISA, is the federal law governing employee benefit plans, including retirement accounts and health insurance. Both the Department of Labor (DOL) and the Internal Revenue Service (IRS) are charged with ensuring ERISA compliance, which, as you can imagine, makes ERISA a prime target for conservatives who already hate “big government.”

Employer plans governed by ERISA have a few requirements that particularly draw conservative ire. One mandates that employer-sponsored retirement plans meet certain minimum funding levels by the employer. This is to help those plans be meaningful ways for employees to save for retirement, without putting the entire burden on those workers. Another provision forbids those plans from discriminating in benefits, such as matching a higher percentage of a male employee’s retirement contributions than a female one’s, or providing comprehensive health insurance coverage for men but not women. The ACA’s birth control benefit draws upon this theory.

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However, not all employers are required to follow ERISA. In particular, the statute exempts “church plans” from its requirements. ERISA defines church plans as those “established and maintained … for its employees … by a church or by a convention or association of churches which is exempt from tax under section 501 of the Internal Revenue Code.” Church plans also include those plans maintained by an organization “controlled by or associated with a church or by a convention or association of churches.” The rationale behind the church plan exemption is similar to the rationale behind most religious or ministerial exemptions to other nondiscrimination laws: Religious orders and institutions like churches and synagogues will generally employ people who follow the same religious tenets as they do because those organizations are engaged in spiritual outreach as part of their “business.”

That prohibition on ERISA governing “church plans” is also incorporated into the ACA.

Historically, organizations like the Little Sisters have had a regulatory pass when it came to maintaining retirement plans and insurance coverage that are either underfunded, discriminatory, or both. That’s because both the DOL and the IRS have been generous in their determination of how they interpret “controlled by or associated with a church or by a convention or association of churches.” And if those agencies determine that an organization has a “church plan,” that, in turn, means it won’t be subjected to a tax penalty for not complying with the ACA’s birth control benefit.

Given the explosion of religiously affiliated employers like hospitals and nursing homes, however, the scope of what does and does not qualify as a church plan has become an increasingly important issue. As religiously affiliated employers began to grow well beyond employing people of similar tenets, away from their ministerial core and into marketplace competition with secular, for-profit businesses, it has made less and less sense to allow those employers a pass to discriminate under ERISA.

At least that’s the argument advanced in a flurry of lawsuits challenging the scope of the church plan exemption under ERISA. Those lawsuits include one against Dignity Health Care, the Catholic-affiliated hospital system facing separate lawsuits related to failing to offer comprehensive reproductive health care at its hospitals. According to the allegations in the complaint, Dignity repeatedly underfunded its retirement plan in violation of ERISA. Dignity responded by arguing its plans were church plans and not subject to ERISA oversight.

Neither the district court nor the Ninth Circuit Court of Appeals bought Dignity’s argument, holding there was no way that when Congress created the church plan exception, it intended the exemption to stretch as far as to shield the country’s fifth-largest health-care employer from regulatory oversight.

That question presented in the Dignity case—of just how broadly that exemption extends—could end up before the U.S. Supreme Court next term. The Roberts Court is considering a pair of cases with this exact issue at their center. Both involve religiously affiliated hospitals, and both have appellate court decisions ruling that organizations like Dignity, which are not actually churches nor actually maintained by religious orders, may not qualify for the church plan exemption.

Which brings us back to the Little Sisters, on whose cases these organizations will undoubtedly base some of their own arguments. The Little Sisters do have a church plan. And it should mean that they will never have to comply with the birth control benefit anyway—which would give them no standing to challenge the ACA’s accommodation. But this is not the argument the Little Sisters and their attorneys want the courts or the public to hear. Instead, the litigation has focused on whether or not completing the form for the birth control accommodation would be a substantial burden for the nuns, despite the fact that at this point under ERISA, there is no question that the federal government could penalize the Little Sisters for refusing to comply with the contraception benefit.

However, the Little Sisters are more than just a group of nuns. They own and operate facilities that employ and serve others. The DOL and IRS have, to date, agreed that the Little Sisters benefits plan is in fact a church plan. But that is in part because without switching plan administrators, the question of whether or not their employee benefits package still qualifies for the exemption has not arisen again. If and when the Little Sisters do switch plans or administrators, the status of their benefits exemption will come up.

At some point during oral arguments in March in Zubik v. Burwell, the conglomerate of cases challenging the accommodation process to the birth control benefit, the fact that the Little Sisters had a church plan and would never be subject to having to comply with the benefit did come up. Paul Clement, who represented the nuns, skillfully dodged the question of whether there was a church plan issue for the Little Sisters. Instead of acknowledging that fact—one even established in the record as an assumption the Tenth Circuit Court of Appeals was making earlier in the litigation to move the case along—Clement assured the justices the church plan wasn’t really something the Court needed to concern itself with at the moment.

Maybe that’s because Clement and the nuns were hoping that if nobody noticed the pass given Little Sisters in their challenge to the birth control benefit, nobody would notice when hospitals and nursing homes also argue for the right to provide discriminatory retirement benefits and cite Zubik for their authority to do so. Maybe they didn’t know about the fight brewing in the appellate courts over which enormous corporate entities are shielded from regulatory nondiscrimination laws like provisions in ERISA and the ACA.

That seems unlikely, though, doesn’t it?

While it may be dry as toast, the church plan exemption under ERISA is critically important. As we’ve seen throughout the nonprofit challenges to the birth control benefit, when employers are allowed to opt out, the effect disproportionately falls on poor women and women of color. And the wages offered to hospital and nursing home workers? They hardly are the kind to lift a person up to more stable financial footing. Which is all another way to say that conservatives’ assertions that institutions like Dignity Health fulfill some spiritual mission and should therefore be treated like a church are all smoke and bluster. Instead, these institutions want cover for ongoing attempts to nickel-and-dime their own workers and to discriminate, based on religious beliefs, when it comes to how and whom these institutions serve. And they’re hoping the Roberts Court will give it to them this next term.

Analysis Law and Policy

Do Counselors-in-Training Have the Right to Discriminate Against LGBTQ People?

Greg Lipper

Doctors can't treat their patients with leeches; counselors can't impose their beliefs on patients or harm them using discredited methods. Whatever their views, medical professionals have to treat their clients competently.

Whether they’re bakers, florists, or government clerks, those claiming the right to discriminate against LGBTQ people have repeatedly sought to transform professional services into constitutionally protected religious speech. They have grabbed headlines for refusing, for example, to grant marriage licenses to same-sex couples or to make cakes for same-sex couples’ weddings-all in the name of “religious freedom.”

A bit more quietly, however, a handful of counseling students at public universities have challenged their schools’ nondiscrimination and treatment requirements governing clinical placements. In some cases, they have sought a constitutional right to withhold treatment from LGBTQ clients; in others, they have argued for the right to directly impose their religious and anti-gay views on their clients.

There has been some state legislative maneuvering on this front: Tennessee, for instance, recently enacted a thinly veiled anti-LGBTQ measure that would allow counselors to deny service on account of their “sincerely held principles.” But when it comes to the federal Constitution, providing medical treatment—whether bypass surgery, root canal, or mental-health counseling—isn’t advocacy (religious or otherwise) protected by the First Amendment. Counselors are medical professionals; they are hired to help their clients, no matter their race, religion, or sexual orientation, and no matter the counselors’ beliefs. The government, moreover, may lawfully prevent counselors from harming their clients, and universities in particular have an interest, recognized by the U.S. Supreme Court, in preventing discrimination in school activities and in training their students to work with diverse populations.

The plaintiffs in these cases have nonetheless argued that their schools are unfairly and unconstitutionally targeting them for their religious beliefs. But these students are not being targeted, any more than are business owners who must comply with civil rights laws. Instead, their universities, informed by the rules of the American Counseling Association (ACA)—the leading organization of American professional counselors—merely ask that all students learn to treat diverse populations and to do so in accordance with the standard of care. These plaintiffs, as a result, have yet to win a constitutional right to discriminate against or impose anti-LGBTQ views on actual or prospective clients. But cases persist, and the possibility of conflicting court decisions looms.

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Keeton v. Anderson-Wiley

The first major challenge to university counseling requirements came from Jennifer Keeton, who hoped to receive a master’s degree in school counseling from Augusta State University. As detailed in the 2011 11th Circuit Court of Appeals decision considering her case, Keeton entered her professional training believing that (1) “sexual behavior is the result of personal choice for which individuals are accountable, not inevitable deterministic forces”; (2) “gender is fixed and binary (i.e., male or female), not a social construct or personal choice subject to individual change”; and “homosexuality is a ‘lifestyle,’ not a ‘state of being.'”

It wasn’t those views alone, however, that sunk her educational plans. The problem, rather, was that Keeton wanted to impose her views on her patients. Keeton had told both her classmates and professors about her clinical approach at a university-run clinic, and it wasn’t pretty:

  • She would try to change the sexual orientation of gay clients;
  • If she were counseling a sophomore student in crisis questioning his sexual orientation, she would respond by telling the student that it was not OK to be gay.
  • If a client disclosed that he was gay, she would tell him that his behavior was wrong and try to change it; if she were unsuccessful, she would refer the client to someone who practices “conversion therapy.”

Unsurprisingly, Keeton also told school officials that it would be difficult for her to work with LGBTQ clients.

Keeton’s approach to counseling not only would have flouted the university’s curricular guidelines, but also would have violated the ACA’s Code of Ethics.

Her conduct would have harmed her patients as well. As a school counselor, Keeton would inevitably have to counsel LGBTQ clients: 57 percent of LGBTQ students have sought help from a school professional and 42 percent have sought help from a school counselor. Suicide is the leading cause of death for LGBTQ adolescents; that’s twice or three times the suicide rate afflicting their heterosexual counterparts. And Keeton’s preferred approach to counseling LGBTQ students would harm them: LGBTQ students rejected by trusted authority figures are even more likely to attempt suicide, and anti-gay “conversion therapy” at best doesn’t work and at worst harms patients too.

Seeking to protect the university’s clinical patients and train her to be a licensed mental health professional, university officials asked Keeton to complete a remediation plan before she counseled students in her required clinical practicum. She refused; the university expelled her. In response, the Christian legal group Alliance Defending Freedom sued on her behalf, claiming that the university violated her First Amendment rights to freedom of speech and the free exercise of religion.

The courts disagreed. The trial court ruled against Keeton, and a panel of the U.S. Court of Appeals for the 11th Circuit unanimously upheld the trial court’s ruling. The 11th Circuit explained that Keeton was expelled not because of her religious beliefs, but rather because of her “own statements that she intended to impose her personal religious beliefs on clients and refer clients to conversion therapy, and her own admissions that it would be difficult for her to work with the GLBTQ population and separate her own views from those of the client.” It was Keeton, not the university, who could not separate her personal beliefs from the professional counseling that she provided: “[F]ar from compelling Keeton to profess a belief or change her own beliefs about the morality of homosexuality, [the university] instructs her not to express her personal beliefs regarding the client’s moral values.”

Keeton, in other words, crossed the line between beliefs and conduct. She may believe whatever she likes, but she may not ignore academic and professional requirements designed to protect her clients—especially when serving clients at a university-run clinic.

As the court explained, the First Amendment would not prohibit a medical school from requiring students to perform blood transfusions in their clinical placements, nor would it prohibit a law school from requiring extra ethics training for a student who “expressed an intent to indiscriminately disclose her client’s secrets or violate another of the state bar’s rules.” Doctors can’t treat their patients with leeches; counselors can’t impose their beliefs on patients or harm them using discredited methods. Whatever their views, medical professionals have to treat their clients competently.

Ward v. Polite

The Alliance Defending Freedom’s follow-up case, Ward v. Polite, sought to give counseling students the right to withhold service from LGBTQ patients and also to practice anti-gay “conversion therapy” on those patients. The case’s facts were a bit murkier, and this led the appeals court to send it to trial; as a result, the student ultimately extracted only a modest settlement from the university. But as in Keeton’s case, the court rejected in a 2012 decision the attempt to give counseling students the right to impose their religious views on their clients.

Julea Ward studied counseling at Eastern Michigan University; like Keeton, she was training to be a school counselor. When she reviewed the file for her third client in the required clinical practicum, she realized that he was seeking counseling about a romantic relationship with someone of the same sex. As the Court of Appeals recounted, Ward did not want to counsel the client about this topic, and asked her faculty supervisor “(1) whether she should meet with the client and refer him [to a different counselor] only if it became necessary—only if the counseling session required Ward to affirm the client’s same-sex relationship—or (2) whether the school should reassign the client from the outset.” Although her supervisor reassigned the client, it was the first time in 20 years that one of her students had made such a request. So Ward’s supervisor scheduled a meeting with her.

Then things went off the rails. Ward, explained the court, “reiterated her religious objection to affirming same-sex relationships.” She told university officials that while she had “no problem counseling gay and lesbian clients,” she would counsel them only if “the university did not require her to affirm their sexual orientation.” She also refused to counsel “heterosexual clients about extra-marital sex and adultery in a values-affirming way.” As for the professional rules governing counselors, Ward said, “who’s the [American Counseling Association] to tell me what to do. I answer to a higher power and I’m not selling out God.”

All this led the university to expel Ward, and she sued. She claimed that the university violated her free speech and free exercise rights, and that she had a constitutional right to withhold affirming therapy relating to any same-sex relationships or different-sex relationships outside of marriage. Like Keeton, Ward also argued that the First Amendment prohibited the university from requiring “gay-affirmative therapy” while prohibiting “reparative therapy.” After factual discovery, the trial court dismissed her case.

On appeal before the U.S. Court of Appeals for the Sixth Circuit, Ward eked out a narrow and temporary win: The court held that the case should go to a jury. Because the university did not have a written policy prohibiting referrals, and based on a few troubling faculty statements during Ward’s review, the court ruled that a reasonable jury could potentially find that the university invoked a no-referrals policy “as a pretext for punishing Ward’s religious views and speech.” At the same time, the court recognized that a jury could view the facts less favorably to Ward and rule for the university.

And although the decision appeared to sympathize with Ward’s desire to withhold service from certain types of clients, the court flatly rejected Ward’s sweeping arguments that she had the right to stray from the school curriculum, refuse to counsel LGBTQ clients, or practice anti-gay “conversion therapy.” For one, it said, “Curriculum choices are a form of school speech, giving schools considerable flexibility in designing courses and policies and in enforcing them so long as they amount to reasonable means of furthering legitimate educational ends.” Thus, the problem was “not the adoption of this anti-discrimination policy, the existence of the practicum class or even the values-affirming message the school wants students to understand and practice.” On the contrary, the court emphasized “the [legal] latitude educational institutions—at any level—must have to further legitimate curricular objectives.”

Indeed, the university had good reason to require counseling students—especially those studying to be school counselors—to treat diverse populations. A school counselor who refuses to counsel anyone with regard to nonmarital, nonheterosexual relationships will struggle to find clients: Nearly four in five Americans have had sex by age 21; more than half have done so by the time they turn 18, while only 6 percent of women and 2 percent of men are married by that age.

In any event, withholding service from entire classes of people violates professional ethical rules even for nonschool counselors. Although the ACA permits client referrals in certain circumstances, the agency’s brief in Ward’s case emphasized that counselors may not refuse to treat entire groups. Ward, in sum, “violated the ACA Code of Ethics by refusing to counsel clients who may wish to discuss homosexual relationships, as well as others who fail to comport with her religious teachings, e.g., persons who engage in ‘fornication.'”

But Ward’s approach would have been unethical even if, in theory, she were permitted to withhold service from each and every client seeking counseling related to nonmarital sex (or even marital sex by same-sex couples). Because in many cases, the need for referral would arise well into the counseling relationship. And as the trial court explained, “a client may seek counseling for depression, or issues with their parents, and end up discussing a homosexual relationship.” No matter what the reason, mid-counseling referrals harm clients, and such referrals are even more harmful if they happen because the counselor disapproves of the client.

Fortunately, Ward did not win the sweeping right to harm her clients or otherwise upend professional counseling standards. Rather, the court explained that “the even-handed enforcement of a neutral policy”—such as the ACA’s ethical rules—”is likely to steer clear of the First Amendment’s free-speech and free-exercise protections.” (Full disclosure: I worked on an amicus brief in support of the university when at Americans United.)

Ward’s lawyers pretended that she won the case, but she ended up settling it for relatively little. She received only $75,000; and although the expulsion was removed from her record, she was not reinstated. Without a graduate counseling degree, she cannot become a licensed counselor.

Cash v. Hofherr

The latest anti-gay counseling salvo comes from Andrew Cash, whose April 2016 lawsuit against Missouri State University attempts to rely on yet murkier facts and could wind up, on appeal, in front of the more conservative U.S. Court of Appeals for the Eighth Circuit. In addition to his range of constitutional claims (freedom of speech, free exercise of religion, equal protection of law), he has added a claim under the Missouri Religious Freedom Restoration Act.

The complaint describes Cash as “a Christian with sincerely-held beliefs”—as opposed to insincere ones, apparently—”on issues of morality.” Cash started his graduate counseling program at Missouri State University in September 2007. The program requires a clinical internship, which includes 240 hours of in-person client contact. Cash decided to do his clinical internship at Springfield Marriage and Family Institute, which appeared on the counseling department’s list of approved sites. Far from holding anti-Christian bias, Cash’s instructor agreed that his proposed class presentation on “Christian counseling and its unique approach and value to the Counseling profession” was an “excellent” idea.

But the presentation itself revealed that Cash intended to discriminate against LGBTQ patients. In response to a question during the presentation, the head of the Marriage and Family Institute stated that “he would counsel gay persons as individuals, but not as couples, because of his religious beliefs,” and that he would “refer the couple for counseling to other counselors he knew who did not share his religious views.” Because discrimination on the basis of sexual orientation violates ACA guidelines, the university determined that Cash should not continue counseling at the Marriage and Family Institute and that it would be removed from the approved list of placements. Cash suggested, however, that he should be able to withhold treatment from same-sex couples.

All this took place in 2011. The complaint (both the original and amended versions) evades precisely what happened between 2012 and 2014, when Cash was finally expelled. You get the sense that Cash’s lawyers at the Thomas More Society are trying to yadda-yadda-yadda the most important facts of the case.

In any event, the complaint does acknowledge that when Cash applied for a new internship, he both ignored the university’s instructions that the previous hours were not supposed to count toward his requirement, and appeared to be “still very much defend[ing] his previous internship stating that there was nothing wrong with it”—thus suggesting that he would continue to refuse to counsel same-sex couples. He continued to defend his position in later meetings with school officials; by November 2014, the university removed him from the program.

Yet in challenging this expulsion, Cash’s complaint says that he was merely “expressing his Christian worldview regarding a hypothetical situation concerning whether he would provide counseling services to a gay/homosexual couple.”

That’s more than just a worldview, though. It also reflects his intent to discriminate against a class of people—in a manner that violates his program’s requirements and the ACA guidelines. Whether hypothetically or otherwise, Cash stated and reiterated that he would withhold treatment from same-sex couples. A law student who stated, as part of his clinic, that he would refuse to represent Christian clients would be announcing his intent to violate the rules of professional responsibility, and the law school could and would remove him from the school’s legal clinic. And they could and would do so even if a Christian client had yet to walk in the door.

But maybe this was just a big misunderstanding, and Cash would, in practice, be willing and able to counsel same-sex couples? Not so, said Cash’s lawyer from the Thomas More Society, speaking about the case to Christian news outlet WORLD: “I think Christians have to go on the offensive, or it’s going to be a situation like Sodom and Gomorrah in the Bible, where you aren’t safe to have a guest in your home, with the demands of the gay mob.” Yikes.

Although Cash seems to want a maximalist decision allowing counselors and counseling students to withhold service from LGBTQ couples, it remains to be seen how the case will turn out. The complaint appears to elide two years’ worth of key facts in order to present Cash’s claims as sympathetically as possible; even if the trial court were to rule in favor of the university after more factual development, Cash would have the opportunity to appeal to the U.S. Court of Appeals for the Eighth Circuit, one of the country’s most conservative federal appeals courts.

More generally, we’re still early in the legal battles over attempts to use religious freedom rights as grounds to discriminate; only a few courts across the country have weighed in. So no matter how extreme Cash or his lawyers may seem, it’s too early to count them out.

* * *

The cases brought by Keeton, Ward, and Cash not only attempt to undermine anti-discrimination policies. They also seek to change the nature of the counselor-client relationship. Current norms provide that a counselor is a professional who provides a service to a client. But the plaintiffs in these cases seem to think that counseling a patient is no different than lecturing a passerby in the town square, in that counseling a patient necessarily involves expressing the counselor’s personal and religious beliefs. Courts have thus far rejected these attempts to redefine the counselor-patient relationship, just as they have turned away attempts to challenge bans on “reparative therapy.”

The principles underlying the courts’ decisions protect more than just LGBTQ clients. As the 11th Circuit explained in Keeton, the university trains students to “be competent to work with all populations, and that all students not impose their personal religious values on their clients, whether, for instance, they believe that persons ought to be Christians rather than Muslims, Jews or atheists, or that homosexuality is moral or immoral.” Licensed professionals are supposed to help their clients, not treat them as prospective converts.

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