Written by Don Byrd, BJC Blogger
This year in religious liberty proved there is no use in predicting. I would have thought, in a presidential election between a Mormon and a Christian (who much of the population still wrongly believes to be Muslim), there would be lots of religious fireworks, questionable theology, and “who’s-the-real-Christian” wars between the campaigns. Apart from some moments in the GOP primary, that was not to be.
Instead, 2012 was the year “religious liberty” became synonymous with the freedom not to provide health coverage for birth control. Who would have guessed?
Here are my choices for the top religious liberty stories of 2012:
Supreme Court ruling in Hosanna-Tabor — In January, the U.S. Supreme Court unanimously affirmed the “ministerial exception” that protects religious institutions from the reach of employment discrimination laws. While not defining the full scope of the exception, the Court held that it applied to a teacher entrusted with some ministerial duties at a religious school.
White House issues faith-based guidelines, sidesteps controversy, continues flawed program — In April, the White House announced guidelines for implementing reforms adopted back in 2010 at the recommendation of the President’s Faith-Based Advisory Council, chaired by former BJC General Counsel Melissa Rogers. Helpfully, the guidelines provide steps for ensuring that federal grants are kept separate from religious activities, in order to avoid church-state entanglement. Unhelpfully, the guidelines fail to address the issue of religious discrimination in hiring using federal funds. The Obama administration has steadfastly refused to address this highly contentious issue. A report in August indicated that the Department of Justice is continuing the troubling Bush administration practice of issuing certificates of exemption from discrimination laws to religious organizations receiving federal funds.
Controversy over contraception coverage mandate — No religious liberty story dominated 2012 like the Affordable Care Act’s requirement that employers provide employee health insurance that includes coverage for contraception. The ensuing firestorm of doomsday hyperbole and political grandstanding created nearly enough noise to drown out legitimate religious accommodation concerns. To understand just where this enormous, ongoing story sits currently, a tour of the year’s developments might be helpful.
In January, the Department of Health and Human Services (HHS) announced the proposed rule requiring all employer-based health plans to cover contraceptive services for women. Houses of worship were exempted, but not other religiously affiliated institutions including religious hospitals and educational institutions, which were given an additional year to comply. Many observers, including the Baptist Joint Committee’s Brent Walker, argued the exemption should be expanded beyond houses of worship. The White House heard the complaints, sped up the review process and President Obama announced a change in February. The new rule would allow religiously affiliated employers to avoid paying for contraception coverage but require their insurance companies to offer such services directly to the insured so that no worker would go without access to birth control, and the religious liberty of faith-based employers would be protected. Walker called the change a “step in the right direction.”
Not everyone was satisfied, however. Critics argued this was more of an accounting maneuver than a religious liberty accommodation. With a presidential election added to the mix, the president was accused by some of waging a war on religion and on religious liberty. Lawsuits were filed challenging the contraception mandate on First Amendment grounds and under the Religious Freedom Restoration Act, raising important questions about the religious liberty rights of employers, employees and corporate entities.
In March, the U.S. Senate narrowly defeated the Blunt Amendment, a measure proposed by Sen. Roy Blunt, R-Mo., that would have exempted objecting employers from providing health services mandated by the ACA, including the contraceptive mandate, if doing so would violate an employer’s religious beliefs or moral convictions regardless of religious affiliation (or lack thereof). Later that month, HHS further clarified that students attending religious universities are covered by the mandate, as are employees of religious institutions that self-insure. The rule recommends that the third-party claim administrator in such a case be required to provide the coverage if the religious employer objects.
Details of how the government’s mandate will apply to religiously affiliated nonprofit organizations have yet to be finalized. Who will pay for employee access to contraception if not their objecting employers? Because the requirement does not go into effect until Aug. 1, 2013, time remains to address those uncertainties. HHS intends to release the final rule governing contraception coverage for those groups sometime prior to that date.
On the other side, at least 40 cases have been filed challenging the mandate, and they are at various stages of litigation. In July, a federal judge in Nebraska dismissed the lawsuit brought by seven states as premature. A judge in Colorado, however, halted the mandate’s application to Hercules Industries, a for-profit family-owned business. More recently, the lawsuit brought by Tyndale Publishing, a for-profit Bible publisher, was allowed to continue, while the complaint filed by Hobby Lobby, a for-profit business with a devout owner, was dismissed. The 4th U.S. Circuit Court of Appeals is set to hear the appeal of evangelical Liberty University, now that the Supreme Court has removed a procedural barrier to that case.
Judges in these cases are wading into complex areas of religious freedom law. Can a for-profit corporation exercise religion? Do employers have individual free exercise rights that supersede employee protections passed by Congress? What constitutes a religious, or religiously affiliated, employer? Stay tuned as these cases wind their way through the judicial system and toward, perhaps, Supreme Court review.
Presidential election mercifully avoids excessive religious fear-mongering — How could I leave out a story as central as the U.S. presidential election? And yet, if anything, this year’s election made the religious liberty list by staying clear of much talk of religion or the exploitation of religion as a divisive tactic. Considering the scrutiny of President Obama’s Christian faith in 2008 and that of his opponent Mitt Romney’s Mormon faith in recent years, I was preparing for an avalanche of religious whisper attacks and accusations. With a few exceptions, though, the religion-based animosity in the general election campaign was pretty tame. And that’s good news for all.
IRS silence over church electioneering — Once again, “Pulpit Freedom Sunday” pastors tried to bait the IRS into a legal battle over the rules prohibiting ministers from endorsing candidates from the pulpit. This year, more than 1,400 participated. But once again, the IRS remained silent about the protest, declining thus far to investigate any of the violations. A number of religious liberty advocates have urged the IRS to act. A lawsuit seeking to compel enforcement of the IRS regulations was filed in November.
Florida’s Amendment 8 defeated — A school voucher vehicle disguised as a religious liberty bill, Florida’s Amendment 8 would have removed the “no aid to religion” provision of the Florida Constitution. “No-aid” protections prohibit state governments from sending tax dollars directly to religious institutions. In December 2011, the Florida referendum survived an effort to remove it from the ballot for having a misleading title and description when the judge in that case ordered it be rewritten. The amendment was defeated, however, by voters in the November 2012 election by a 55-45 margin. The Baptist Joint Committee was among the many religious liberty advocates who successfully opposed it. Click here for more on Florida’s Amendment 8 from the November/December edition of Report from the Capital.
Profiling allegation prompts criticism of NYPD — An investigation by The Associated Press published in February revealed secret New York Police Department files devoted to surveillance of Islamic centers. The files detailing information about mosques and mosque attendees prompted a federal lawsuit in June. The BJC joined other religious liberty groups in signing a letter to a Senate Judiciary subcommittee asking for the practice of religious profiling to end. In September, NYPD officials announced they no longer employed such techniques.
Attack on Sikh temple in Wisconsin — The nation was shocked in August when a gunman opened fire at a Sikh temple in Oak Creek, Wis., killing six and wounding four others. As I wrote soon after, targeting a religious minority was an attack on the religious liberty of all Americans. A Senate Judiciary subcommittee held a hearing on hate crimes in response to the event.
Workplace protections inch forward — California passed one of the nation’s strongest workplace religious freedom protection bills. Signed by Gov. Jerry Brown in September, the bill clarifies that religious clothing and hairstyle are covered as religious observances. It also heightens the standard for employers who claim that accommodating the religious observance of employees will be an undue hardship. Lastly, the bill does not allow employers to accommodate the religious observance of employees by segregating them from the public. Congratulations to the bill’s sponsor, Assemblywoman Mariko Yamada, on its passage. Now, where’s the federal Workplace Religious Freedom Act?
The next year should be an interesting one. Here are things to look for throughout 2013:
- As I indicated with regard to the biggest religious liberty story of 2012, there are lots of developments to watch for in the contraceptive mandate dispute in 2013. Church-state challenges continue toward the Supreme Court, and HHS will finalize and implement the mandate by August.
- Will we ever get direct answers from the administration about the policy regarding hiring discrimination with federal funds?
- Will public school cheerleaders in Texas be allowed to hold signs with distinctly Christian messages on the field for high school football games?
- Will the Supreme Court get a new appointment next year? Will it take up a new church-state dispute?
- Will Egypt settle on a constitutional framework that allows religious freedom for all?
- What new church-state controversy nobody can see coming will take the stage in 2013? Who knows, but I will be following it all. Bookmark the BJC blog (www.BJConline.org/blog) and follow me on Twitter @BJCblog to keep up!
From the November/December 2012 Report from the Capital. Click here for the next article.
