Analysis Law and Policy

‘Religious Liberty’ Bills Fail in States, But What About the Courts?

Jessica Mason Pieklo

State laws in Arizona, Kansas, Ohio, and elsewhere that would enshrine discrimination in the name of "religious liberty" have faced political setbacks, but a legal victory isn't certain yet.

Read more of our coverage on the Hobby Lobby and Conestoga Wood cases here.

This week, after much deliberation, Republican Arizona Gov. Jan Brewer vetoed a so-called religious freedom bill that would have allowed secular, for-profit businesses in the state to use religion as an excuse to legally refuse service to anyone. The bill was largely seen as a way for social conservatives who are freaked out over rapidly advancing marriage equality to legalize discrimination at the state level as a way to try and avoid having to deal with equality at the federal level. But despite the fact that Gov. Jan Brewer vetoed the measure, it’s still perfectly legal to engage in some forms of discrimination in Arizona and at least 17 other states as well. So what, then, was all the fuss about with the Arizona bill and Brewer’s veto? The answer lies in part in the political and legal challenges to the Affordable Care Act.

In many ways, this latest battle over discriminating in the name of religious liberty started more than 20 years ago with the 1990 Supreme Court decision Employment Division, Department of Human Resources of Oregon v. Smith. That case involved two members of a Native American church who were fired from their jobs as drug counselors after illegally using peyote; they were subsequently denied unemployment compensation by the State of Oregon. They challenged their firing and the denial of unemployment benefits by arguing prohibitions on peyote use violated their religious liberty rights. The Supreme Court disagreed. In the opinion, written by Justice Antonin Scalia, the Court held that a person’s religious beliefs can’t be used as a shield to prevent them from abiding by laws that are neutral and not designed to restrict religious freedom. To do so, the Court wrote, would “make the professed doctrines of religious belief superior to the law of the land, and in effect permit every citizen to become a law unto himself.”

While the Court’s conclusion may have been logical enough, the decision was seen by social conservatives as a blow to religious liberty rights, since the Court concluded that the Smith decision meant that the free exercise clause could be used only against laws that specifically target religion. In response, Congress passed the Religious Freedom Restoration Act (RFRA), a federal law designed to ensure that any laws that potentially burden the free exercise of religious rights—not just those that specifically target religion and religious practices—be reviewed by courts under the “strict scrutiny” standard.

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This strict scrutiny standard is the toughest constitutional standard courts can apply to government conduct that affects constitutional rights. And while the Supreme Court, in City of Boerne v. Flores, would later strike down the RFRA as applying to state or localities, on the grounds that Congress had exceeded its authority under the 14th Amendment in trying to make it apply beyond the federal government, the decision left in place RFRA at the federal level and opened the door for a myriad of state-level mini-RFRA’s to pass. And pass they did. Within three years of the Flores decision, 11 states, including Arizona, had passed their own versions of the RFRA.

Arizona’s original RFRA covers individuals and religious entities, such as churches, but the version vetoed by Gov. Brewer would have expanded those protections to other organizations, like corporations, and would have made the state RFRA applicable in private litigation between persons, like the bakers who are refusing to bake cakes for same-sex couples. Specifically, the Arizona bill looked to expand that state’s RFRA by changing the definition of “person” entitled to religious exemption from complying with state anti-discrimination laws. Importantly, the bill never used the words “gay” or “sexual orientation” in limiting the basis for business owners to discriminate because of their religious objections. That means the law would have been able to compromise existing state civil rights protections, including those based on race, sex, ability, and others—which was part of the point.

If Arizona’s law sounds familiar, that’s because the arguments at its core are nearly identical to those currently before the Supreme Court in the Hobby Lobby and Conestoga Wood Specialties cases challenging the contraception mandate in the Affordable Care Act on the grounds that it violates the federal Religious Freedom Restoration Act.

“The nation is just getting a peek at this extreme agenda designed to give corporations a license to discriminate, and they don’t like what they see,” said Cecile Richards, president of Planned Parenthood Action Fund, in a statement. “What’s clear from the Arizona debate is that this is not a fight about religious liberties. It is about corporations who want a license to discriminate against people by denying services, taking away birth control coverage, and blocking access to health care.”

Tony Perkins, president of the conservative Family Research Council, confirmed Richards’ point in his own statement following Brewer’s veto of the bill. “Under the amended Religious Freedom Restoration Act, what was legislative intent (but ignored by certain courts) would have been clear: individuals do not have to trade their religious freedom for entrance into public commerce,” he said. “In other words, whether it’s a wedding vendor, whose orthodox Christian faith will not allow her to affirm same-sex ‘marriage,’ or a business like Hobby Lobby or Conestoga Wood, whose faith bars them from providing drugs that have the potential to end a pregnancy, the provisions of RFRA would apply.”

As both the Arizona law and the legal challenges to the contraception mandate under RFRA make clear, these cases and bills have very little to do with religious liberty and everything to do with expanding corporate power and advancing Christian patriarchy. In North Dakota, for example, social conservatives tried and failed to pass Measure 3, a ballot initiative that critics warned would have made it more difficult to prosecute abusers by allowing those accused of domestic violence to claim that it was their “sincerely held religious belief” that they should be allowed to “discipline their wife and children as they see fit,” and could undermine everything from child protection laws to the minimum wage.

Which leads us back to the Supreme Court and the oral arguments in March in the Hobby Lobby and Conestoga cases. One of the goals of those challenging the mandate in those cases is to get the Supreme Court to rule that for-profit companies should be considered “people” under the RFRA and thus covered by its protections the same way it protects individuals. This is the expansion religious conservatives sought to the Arizona law, and which Brewer vetoed after significant public and corporate pressure to do so. But what about the Roberts Court? As Cecile Richards noted, “If Gov. Jan Brewer can see that this way is too extreme, surely the U.S. Supreme Court can, too.”

That sounds like a fair enough conclusion: that the Roberts Court should be at least as reasonable as the very conservative Gov. Brewer. The problem with that conclusion, though, is that when it comes to expanding corporate power at the expense of employees, the Roberts Court knows no bounds. At every opportunity—whether making it harder for employees to sue for harassment or equal pay—the conservative majority on the Roberts Court has sided with employers. It’s hard to see them passing up yet another opportunity to do so in the Hobby Lobby and Conestoga cases.

But it’s also hard not to grasp the political reality of Brewer’s veto, that the veto of SB 1062, along with the defeat of similar measures in Ohio and Kansas, is a genuine victory. The public is largely not buying the discrimination in the name of religious liberty argument—at least when the case is framed as a gay rights issue. Even so, as of the publication of this piece, Missouri, Mississippi, Oklahoma, and Georgia either had or were considering similar bills, and at last count religious conservatives had filed more than 100 lawsuits challenging the contraception mandate on religious liberty grounds. And let’s not forget the 18 mini-RFRA’s already on the books.

That means we’re reaching another apex of sorts in the battle for equality—another point where the politics of religious conservatism clashes with the evolution of our constitutional promises of equal treatment under the law. Gov. Brewer’s veto and the unstoppable advance of marriage equality show the political battle is largely over. This summer, when the Roberts Court issues its decision in the Hobby Lobby and Conestoga cases, we’ll see about the legal battle.

News Abortion

Study: United States a ‘Stark Outlier’ in Countries With Legal Abortion, Thanks to Hyde Amendment

Nicole Knight Shine

The study's lead author said the United States' public-funding restriction makes it a "stark outlier among countries where abortion is legal—especially among high-income nations."

The vast majority of countries pay for abortion care, making the United States a global outlier and putting it on par with the former Soviet republic of Kyrgyzstan and a handful of Balkan States, a new study in the journal Contraception finds.

A team of researchers conducted two rounds of surveys between 2011 and 2014 in 80 countries where abortion care is legal. They found that 59 countries, or 74 percent of those surveyed, either fully or partially cover terminations using public funding. The United States was one of only ten countries that limits federal funding for abortion care to exceptional cases, such as rape, incest, or life endangerment.

Among the 40 “high-income” countries included in the survey, 31 provided full or partial funding for abortion care—something the United States does not do.

Dr. Daniel Grossman, lead author and director of Advancing New Standards in Reproductive Health (ANSIRH) at the University of California (UC) San Francisco, said in a statement announcing the findings that this country’s public-funding restriction makes it a “stark outlier among countries where abortion is legal—especially among high-income nations.”

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The researchers call on policymakers to make affordable health care a priority.

The federal Hyde Amendment (first passed in 1976 and reauthorized every year thereafter) bans the use of federal dollars for abortion care, except for cases of rape, incest, or life endangerment. Seventeen states, as the researchers note, bridge this gap by spending state money on terminations for low-income residents. Of the 14.1 million women enrolled in Medicaid, fewer than half, or 6.7 million, live in states that cover abortion services with state funds.

This funding gap delays abortion care for some people with limited means, who need time to raise money for the procedure, researchers note.

As Jamila Taylor and Yamani Hernandez wrote last year for Rewire, “We have heard first-person accounts of low-income women selling their belongings, going hungry for weeks as they save up their grocery money, or risking eviction by using their rent money to pay for an abortion, because of the Hyde Amendment.”

Public insurance coverage of abortion remains controversial in the United States despite “evidence that cost may create a barrier to access,” the authors observe.

“Women in the US, including those with low incomes, should have access to the highest quality of care, including the full range of reproductive health services,” Grossman said in the statement. “This research indicates there is a global consensus that abortion care should be covered like other health care.”

Earlier research indicated that U.S. women attempting to self-induce abortion cited high cost as a reason.

The team of ANSIRH researchers and Ibis Reproductive Health uncovered a bit of good news, finding that some countries are loosening abortion laws and paying for the procedures.

“Uruguay, as well as Mexico City,” as co-author Kate Grindlay from Ibis Reproductive Health noted in a press release, “legalized abortion in the first trimester in the past decade, and in both cases the service is available free of charge in public hospitals or covered by national insurance.”

Commentary Contraception

For Students at Religious Universities, Contraception Coverage Isn’t an Academic Debate

Alison Tanner

When the U.S. Supreme Court sent a case about faith-based objections to the Affordable Care Act's contraceptive mandate back to lower courts, it left students at religious colleges and universities with continuing uncertainty about getting essential health care. And that's not what religious freedom is about.

Read more of our articles on challenges to the Affordable Care Act’s birth control benefit here.

Students choose which university to attend for a variety of reasons: the programs offered, the proximity of campus to home, the institution’s reputation, the financial assistance available, and so on. But young people may need to ask whether their school is likely to discriminate in the provision of health insurance, including contraceptive coverage.

In Zubik v. Burwell, a group of cases sent back to the lower courts by the U.S. Supreme Court in May, a handful of religiously affiliated universities sought the right to deny their students, faculty, and staff access to health insurance coverage for contraception.

This isn’t just a legal debate for me. It’s personal. The private university where I attend law school, Georgetown University in Washington, D.C., currently complies with provisions in the Affordable Care Act that make it possible for a third-party insurer to provide contraceptive access to those who want it. But some hope that these legal challenges to the ACA’s birth control rule will reverse that.

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Georgetown University Law Center refused to provide insurance coverage for contraception before the accommodation was created in 2012. Without a real decision by the Supreme Court, my access to contraception insurance will continue to be at risk while I’m in school.

I’m not alone. Approximately 1.9 million students attend religiously affiliated universities in the United States, according to the Council for Christian Colleges and Universities. We students chose to attend these institutions for lots of reasons, many of which having nothing to do with religion. I decided to attend Georgetown University Law Center because I felt it was the right school for me to pursue my academic and professional goals, it’s in a great city, it has an excellent faculty, and it has a vibrant public-interest law community.

Like many of my fellow students, I am not Catholic and do not share my university’s views on contraception and abortion. Although I was aware of Georgetown’s history of denying students’ essential health-care benefits, I did not think I should have to sacrifice the opportunity to attend an elite law school because I am a woman of reproductive age.

That’s why, as a former law clerk for Americans United for Separation of Church and State, I helped to organize a brief before the high court on behalf of 240 students, faculty, and staff at religiously affiliated universities including Fordham, Georgetown, Loyola Marymount, and the University of Notre Dame.

Our brief defended the sensible accommodation crafted by the Obama administration. That compromise relieves religiously affiliated nonprofit organizations of any obligation to pay for or otherwise provide contraception coverage; in fact, they don’t have to pay a dime for it. Once the university informs the government that it does not want to pay for birth control, a third-party insurer steps in and provides coverage to the students, faculty, and staff who want it.

Remarkably, officials at the religious colleges still challenging the Affordable Care Act say this deal is not good enough. They’re arguing that the mere act of informing the government that they do not want to do something makes them “complicit” in the private decisions of others.

Such an argument stands religious freedom on its head in an attempt to impose one group’s theological beliefs on others by vetoing the third-party insurance providers’ distribution of essential health coverage to students, faculty, and staff.

This should not be viewed as some academic debate confined to legal textbooks and court chambers. It affects real people—most of them women. Studies by the Guttmacher Institute and other groups that study human sexuality have shown that use of artificial forms of birth control is nearly universal among sexually active women of childbearing years. That includes Catholic women, who use birth control at the same rate as non-Catholics.

Indeed, contraception is essential health care, especially for students. An overwhelming number of young people’s pregnancies are unplanned, and having children while in college or a graduate program typically delays graduation, increases the likelihood that the parent will drop out, and may affect their future professional paths.

Additionally, many menstrual disorders make it difficult to focus in class; contraception alleviates the symptoms of a variety of illnesses, and it can help women actually preserve their long-term fertility. For example, one of the students who signed our brief told the Court that, “Without birth control, I experience menstrual cycles that make it hard to function in everyday life and do things like attend class.” Another woman who signed the brief told the Court, “I have a history of ovarian cysts and twice have required surgery, at ages 8 and 14. After my second surgery, the doctor informed me that I should take contraceptives, because if it happened again, I might be infertile.”

For these and many other reasons, women want and need convenient access to safe, affordable contraceptives. It is time for religiously affiliated institutions—and the Supreme Court—to acknowledge this reality.

Because we still don’t have an ultimate decision from the Supreme Court, incoming students cannot consider ease of access to contraception in deciding where to attend college, and they may risk committing to attend an university that will be legally allowed to discriminate against them. A religiously affiliated university may be in all other regards a perfect fit for a young woman. It’s unfair that she should face have to risk access to essential health care to pursue academic opportunity.

Religious liberty is an important right—and that’s why it should not be misinterpreted. Historically, religious freedom has been defined as the right to make decisions for yourself, not others. Religious freedom gives you have the right to determine where, how, and if you will engage in religious activities.

It does not, nor should it ever, give one person or institution the power to meddle in the personal medical decisions of others.