Supreme Court Takes On Affordable Care Act Again

the PillSince its founding in 2003, Jewish Social Policy Action Network (JSPAN) has been in the forefront of the Jewish community in supporting the right to reproductive freedom and protecting religious liberty. Sometimes we take the lead by filing amicus briefs in the Supreme Court, as we did in the Hobby Lobby case, arguing that private corporations should not be able to claim a religious right to deny their employees access to reproductive healthcare services. At other times we work in coalition with Jewish and non-Jewish groups.

Recently JSPAN joined with the ADL in asking the Supreme Court to uphold the provision in the Affordable Care Act’s contraception mandate that requires a religious institution opposed to contraception to sign a waiver stating such, after which employees can receive it through third parties.

In Zubik v Burwell, petitioners claim that merely signing a waiver violates the signers’ religious tenets, and is thus unconstitutional according to the Religious Freedom Restoration Act. JSPAN heartily agrees with the ADL that signing the waiver does not pass RFRA’s “substantial burden” test. Moreover, finding for the petitioners would prevent employees who favor the use of contraceptives from exercising their own freedom of religion. An ADL press release said, “Allowing one’s religious beliefs to be an effective veto of virtually any federal law or rule would undermine our country as a nation of laws.”

Joining JSPAN in recognizing this as an issue of great interest to Jews were Bend the Arc (of which JSPAN is an affiliate), Keshet, National Council of Jewish Women, and Women’s League for Conservative Judaism.

Rabbi George Stern, Executive Director
Rabbi Seymour Rosenbloom, President

Reinterpreting the Religious Freedom Restoration Act

070314.N.DNT_.HobbyLobby%201_0[1]Blowback for the Jewish Community?

Jeffrey I. Pasek spoke recently to a large and completely engaged audience at Congregation Adath Jeshurun in Elkins Park about the Religious Freedom Restoration Act (RFRA) and why Jews should care about it. Pasek, a partner in the Labor & Employment Group of the law firm Cozen O’Connor and a longtime leader in Jewish communal affairs, explained the modern legal history of religious freedom under the First Amendment and its statutory sequel, the RFRA. He discussed the Supreme Court’s unexpected expansion of this law and the potentially troubling consequences it could have. [Read more…]

Scary Op/Ed Seeks to Roil Orthodox Waters

maxresdefault[1]The Supreme Court decision granting equal marriage rights to gays is bringing fear mongers out of the closet. Nathan Lewin’s op/ed My Rabbi Needs Legal Aid in The Jewish Exponent strives to instill in the Orthodox community a wholly unnecessary fear of gay rights. The article argues that an Orthodox rabbi may be forced to officiate at a gay wedding, contrary to the view of marriage expressed in Genesis 2:24, “A man shall leave his father and mother and cling to his woman and they shall become one flesh.”

The Supreme Court is, of course, precluded by the First Amendment from adopting the Bible as its law. Separation of church and state requires that it find other bases for decisions.

When two important Constitutional rights collide — say my right of equal protection of the laws and your freedom of religious practice — courts need to decide which right prevails. Contrary to the Nathan Lewin’s worries, the trend today is full tilt in favor of religion.
[Read more…]

The Limits of Freedom of Religion

Since the Supreme Court pronounced that a corporation can have religious rights, a number of new cases have been emerging, seeking to stake out broad additional territory.

In the Hobby Lobby case, the Court found that a closely held business corporation had religious rights, and could deny its employees contraceptive health insurance coverage called for under the Affordable Care Act. But that ruling may be only the beginning of a new chapter in the law of religious freedom under the First Amendment.

A few years ago the Pennsylvania Department of State, the agency that processes incorporation papers, refused to accept an application for the title “I Choose Hell Productions LLC” because it contained blasphemy. The Department rested its refusal on a law against blasphemy in corporate names, and argued in support of the law that the public should not be exposed to inflammatory language. The federal court hearing the case ruled that the law was an unconstitutional effort to advance religion.

But what about a law that is entirely neutral – that does not deal with religion at all? Polygamy is unlawful across the board, even though a few religions allow it. A law against cruelty to animals will be effective against animal sacrifice if the law is conceived and worded neutrally, and not as a reaction to a particular religion.

Simons Looking back by Stevie

A Jewish lesbian wedding in Colorado. Photo by Steve Crecilius.

However, in Hobby Lobby, the Supreme Court ruled that a corporation for profit could avoid complying with a provision of a totally neutral law – the Affordable Care Act – to provide insurance that includes benefits for contraceptives, if the owners of the business have a religious scruple against use of the abortifacient medicines at issue. Since then, it has been open season on religious exemption claims.

Several states have extended to gays the protection of their laws against discrimination in employment, housing and commerce. In Colorado, a cake baker refuses to prepare wedding cakes for LGBT weddings. The baker justifies his refusal on grounds of his religious beliefs. A gay couple challenged the refusal before the state human relations agency and won. The baker is appealing to a court from agency’s the ruling against him.

In New York, a catering hall that usually handles weddings refuses to rent out for gay weddings. A gay couple who were refused a booking complained to the New York State human relations agency and were successful. The wedding hall is appealing to the state courts.

What is the right answer to these cases? The traditional response is rendering up to Caesar: Those who engage in commerce must accept the burden of the laws that cover matters such as trade and employment. The newly emerging answer may be that individual religious scruples are protected, even in the commercial marketplace.

As a minority, Jews might prefer the new and enlarged version of the First Amendment protection of religion. Maintaining our religious practice without any accommodation is certainly very difficult at times.

Or we might conclude the opposite. Consider that the baker might have anti-Semitic “scruples” along with his belief against gay marriage. The wedding hall could prefer not to accept events that bless a marriage without mentioning the Christian sacraments.

Large urban centers have plenty of bakers and wedding halls, but other areas, where few Jews live, may also have few of these services. Should the views of such services’ owners – even the sincerely held religious views — exempt the businesses from the anti-discrimination laws of their states or of the federal government?

As the new cases move along, we will find out.