The Public Rights / Private Conscience Project engages in policy work on a wide range of religious exemption issues. You can find more information about our latest policy projects here.
In this memo, we provide an overview of the enormous variety of religious exemptions introduced and passed at the state and federal levels last year. We expect similar bills, which allow organizations and individuals to violate laws that conflict with their religious views about sex and marriage, to be introduced again this year.
Read the full memo here.
Following the Supreme Court's decision to vacate and remand the cases in Zubik v. Burwell, the Department of Health and Human Services (HHS) issued a request for information on alternative ways to accommodate religious nonprofits from compliance with the contraceptive mandate of the Affordable Care Act (ACA). Our comment explains that the ACA's existing religious accommodation complies with federal law, and that expanding the accommodation in a way that harms employees and their families would risk violating the Establishment Clause of the First Amendment. Further, we highlight the effects an overly-broad accommodation of religion would have on communities of color.
Read the comments submitted here.
Professor Katherine Franke was invited to testify before the Pennsylvania Senate’s Labor and Industry Committee on the need to include greater protections for religious liberty in a bill that would add Sexual Orientation and Gender Identity to Its Human Relations Law. She argued that current language contained in Pennsylvania’s Human Relations Act, the U.S. and Pennsylvania Constitutions, and Pennsylvania’s Religious Freedom Protection Act, provide robust protections for the religious liberty rights of faith-based employers, and as such no additional language is needed in SB 1306 to protect employers’ rights to the free exercise of religion. Indeed, some of the language contained in amendments to companion bills previously pending before the Pennsylvania legislature risks building into the Commonwealth’s Human Relations Act an overly-solicitous accommodation of religious preferences in a manner that could create a violation of the Establishment Clause. An additional accommodation of religious belief, such as that contained in A08770 offered to SB 1307 in the Senate Housing and Urban Affairs Committee, “A08770,” is therefore unnecessary and, moreover, risks unsettling a well-considered balance set by the Pennsylvania legislature and courts between religious liberty and other equally fundamental rights. By creating a religious accommodation that would meaningfully harm other Pennsylvanians, A08770 conflicts with established First Amendment doctrine.
Read the testimony here.
On Tuesday, July 12th, Professor Franke delivered testimony on behalf of twenty leading legal scholars providing an in depth analysis of the meaning and likely effects of the First Amendment Defense Act (FADA), were it to become law. The Public Rights/Private Conscience Project was particularly compelled to provide testimony to the Committee because the first legislative finding set out in FADA declares that: “Leading legal scholars concur that conflicts between same-sex marriage and religious liberty are real and should be addressed through legislation.” As leading legal scholars we must correct this statement: we do not concur that conflicts between same-sex marriage and religious liberty are real, nor do we hold the view that any such conflict should be addressed through legislation. On the contrary, we maintain that religious liberty rights are already well protected in the U.S. Constitution and in existing federal and state legislation, rendering FADA both unnecessary and harmful.
FADA establishes vague and overly broad religious accommodations that would seriously harm other Americans’ legal rights and protections. Instead of protecting the First Amendment, the First Amendment Defense Act likely violates the First Amendment’s Establishment Clause. The Act purports to protect free exercise of religion and prevent discrimination, yet in fact it risks unsettling a well-considered constitutional balance between religious liberty, the prohibition on government endorsement of or entanglement with religion, and other equally fundamental rights.
Read the testimony here.
This analysis of a 2007 memo by the Department of Justice Office of Legal Counsel ("OLC memo") concludes that the memo misinterprets the Religious Freedom Restoration Act (RFRA) and violates the Establishment Clause of the First Amendment. The OLC memo posits that under RFRA, religious recipients of federal grants have a right to use taxpayer funds to hire only coreligionists. The memo has increasingly been relied upon by religious grantees to request far broader religious exemptions. By allowing government funds to be used to further religious ends, the OLC memo oversteps the bounds of the Establishment Clause.
Read the Public Rights/Private Conscience Project's statement on the OLC memo here
Previously, we issued a lengthy legal analysis outlining a number of reasons Missouri Senate Joint Resolution 39 conflicts with the Establishment Clause of the U.S. Constitution. This statement summarizes our prior memo and addresses an additional harm SJR 39 would impose on Missourians: By forbidding the government from imposing a “penalty” on certain religious actors, SJR 39 will immunize these actors from prosecution if they commit criminal acts, including trespass, harassment, and even violent crimes, based on their religious beliefs about marriage equality.
Read the Public Rights/Private Conscience Project's statement on Constitutional Amendment SJR 39
This memo examines Missouri SJR 39, a proposed amendment to the Missouri Constitution. It concludes that the amendment, which provides broad religious accommodations to public and private actors, is unconstitutional. SJR 39 would immunize many religious believers from suit if they violate municipal law or contractual obligations because of a “sincere religious belief concerning marriage between two persons of the same sex.” It provides a safe haven for religious objectors to discriminate against same-sex couples and all supporters of marriage equality in numerous contexts, including employment, housing, public accommodations, and the provision of government services. By requiring private Missouri citizens to bear the cost of others’ religious beliefs, SJR 39 violates the Establishment Clause of the First Amendment.
Read the Public Rights/Private Conscience Project's full memorandum regarding SJR 39
This memo analyzes Mississippi HB 1523, which was signed into law by Governor Phil Bryant. It explains why many provisions of this broad religious exemption law conflict with the Establishment Clause of the U.S. Constitution. HB 1532 grants religious accommodations to individuals, religious institutions, for-profit businesses, and state actors that will harm the rights of Mississippians who are LGBT or do not conform to religious sex and gender norms. It is part of a larger trend of state legislation that seeks to codify a right to discriminate in the name of religious freedom.
Read the Public Rights/Private Conscience Project's full memo regarding HB 1523 here
This memo explores the scope and meaning of Georgia House Bill 757. Specifically, it calls attention to language in the bill that may conflict with the Establishment Clause of the U.S. Constitution. In light of established First Amendment doctrine, HB 757 presents a conflict with the First Amendment by granting religious accommodations that would meaningfully harm the rights of others. While the bill will be vetoed in Georgia, states around the country have introduced, and will continue to introduce, legislation that mirrors much of HB 757’s overbroad, vague, and problematic language. This analysis clarifies and explains the bill’s legal weaknesses. The analysis contained in this memo applies with equal measure to bills with similar language pending in Mississippi and Missouri.
Read the Public Rights/Private Conscience Project's full memo regarding HB 757 here
If the plaintiffs in Zubik v. Burwell win, thousands of women of color who work at religious non-profits could be stripped of their right to no-cost insurance coverage for contraception. That’s what at stake in the latest Supreme Court case challenging the Affordable Care Act’s contraceptive mandate. This fact sheet explores what women of color have at stake in this newest round of litigation over the ACA.
Access the Fact Sheet here
The Public Rights/Private Conscience Project assisted the Counsel for Church-State Scholars in the preparation of an amicus brief submitted in the Supreme Court of the United States case of David A. Zubik, et al., v. Sylvia Burwell, et al.
"For several years, Congress, the Administration,and the courts have struggled with how to accommodate religious objections to the requirement of contraceptive coverage in the Affordable Care Act (the “Mandate”) while also ensuring that women retain the full access to contraceptive services the Act guarantees them. In all phases of the litigation, the courts have recognized that religious accommodation cannot come at the expense of women’s access to contraception, although the courts have not always been clear about why this is so. Amici submit that the parties and the courts haveoverlooked or underemphasized a critical reason for this limitation on religious accommodation: the Establishment Clause prohibits the government from shifting the costs of accommodating a religion from those who practice it to those who do not. Shifting burdens in this way improperly imposes one person’s faith on another, in violation of the government’s obligation to be evenhanded in the face of religious differences among citizens."
Read the full brief here
The Affordable Care Act includes a non-discrimination provision known as section 1557, which prohibits discrimination on the ground of race, color, national origin, sex, age, or disability under “any health program or activity, any part of which is receiving Federal financial assistance … or under any program or activity that is administered by an Executive agency or any entity established under [Title I of ACA]….” Section 1557 is the first Federal civil rights law to prohibit sex discrimination in health care.
On Sunday, November 8th, 2015, a group of law and religion scholars submitted comments as part of the notice-and-comment period for regulations under this provision. Professor Katherine Franke and Kara Loewentheil, Director of the Public Rights/Private Conscience Project, were among the signatories to the comments. The comments detail concerns that if the Department of Health and Human Services allows individuals or groups to deny care or health services based on exemptions available under the Religious Freedom Restoration Act, such allowances could potentially undermine the goals of 1557 NPRM. In part, the letter states:
"We strongly urge the U.S. Department of Health and Human Services (HHS) to refrain from expanding exemptions beyond those already provided under federal law. The government should not fund discrimination by health programs and activities that receive federal financial assistance. Additional religious exemptions would risk imposing significant burdens on women and sexual minorities in violation of the Establishment Clause of the U.S. Constitution. Religious liberty doctrine does not require such exemptions, but rather warns against them.
We recommend that HHS make explicit the constitutional limits on the application of existing religious exemption laws. The Nondiscrimination Rule should specify that theReligious Freedom Restoration Act and other existing religious accommodations under federal law apply only insofar as identifiable third parties are not harmed."
Read the full letter here.
The Supreme Court's decision on June 26th constitutionalizing a right to civil marriage for same-sex couples in the Obergefell decision lifted a ban on same-sex couples access to civil marriage. The immediate response of some state attorneys general and other public officials is to claim that public officials responsible for officiating over civil marriages and/or issuing marriage licenses be granted an exemption from presiding over the marriages of same-sex couples if doing so would offend their conscience or sincerely held religious beliefs. Some of these proposals suggest that officials who have religious or conscience-based objections to issuing a marriage license could lawfully delegate responsibility for issuing that license to deputies or assistants who do not have the same objections. These advocates assert that these proposals lawfully balance the constitutional rights of same-sex couples to marry with the religious liberty rights of public officials. While there are a number of such proposals being put forward in jurisdictions across the country, we refer to them collectively as “marriage license exemption proposals.”
This legal memorandum analyzes the legality of these “marriage license exemption proposals” under the First and Fourteenth Amendments to the U.S. Constitution and Title VII of the Civil Rights Act of 1964. (The memorandum does not examine their legality under the federal Religious Freedom Restoration Act, or RFRA, as RFRA does not apply to state or local employees. ) The memorandum concludes that nothing in the Constitution or in Title VII requires such exemptions. Instead, adopting such exemptions by statute or policy would violate fundamental constitutional rights secured by the Fourteenth Amendment Equal Protection clause and the First Amendment’s prohibition against the establishment of religion.
The legal memorandum is available here.
State RFRA FAQ
State RFRAs continue to make news across the country, but what is a RFRA? How are state RFRAs different from the federal RFRA? What do these laws allow and why do they matter? Our FAQ answers all these questions and more.
The FAQ can be found here.
Letter to Indiana Legislature Concerning Pending "Religious Freedom Restoration Act" Bills
Upon the request of a member of the Indiana legislature we crafted an analysis of the proposed "Religious Freedom Restoration Act" bills pending before the Indiana legislature. The letter we wrote provided careful analysis of the bills in light of Indiana and federal religious liberty law, and gained thirty signatures, many who are law professors at Indiana University. The analysis stresses that:
- Religious freedom is a fundamental American value enshrined in the Indiana Constitution. But the proposed legislation could undermine those values and result in harmful consequences.
- The proposed Indiana RFRA would unsettle a well–reasoned harmony struck by Indian courts between rights to religious liberty and other fundamental rights – as such, this is not a modest proposal but instead could have radical consequences and will unleash a wave of litigation.
- Such harmful consequences could include employers, landlords, and corporations taking the law into their own hands and arguing that their religious beliefs allow them to avoid complying with laws that apply to everyone else. This will likely result in a flood of lawsuits.
- The right to religious liberty, like most fundamental rights, is not absolute. The law is very clear that religious liberty rights secured under state RFRAs or under the Indiana or U.S. Constitutions cannot be secured by shifting material costs to third party rights-holders. The proposed legislation should not be enacted because it does not limit the scope of religious liberty rights in cases where they undermine other important rights to public health, equality, or security.
- For instance, when a state police officer sought an exemption from working as a riverboat gaming agent because he had a religious objection to gambling, an Indiana court rejected this challenge, the Indiana Court of Appeals noted that, “law enforcement agencies need the cooperation of all members…Firefighters must extinguish all fires, even those in places of worship that the firefighter regards as heretical.”
- In a Supreme Court case, an Amish employer challenged on religious grounds the requirement to pay Social Security taxes on behalf of his employees. The court rejected the exemption, noting the harm it would impose on others.
- Some supporters of the proposed RFRA have argued incorrectly that the language of the proposed Indiana RFRA is the same as the federal RFRA and as such the Indiana law should gain bipartisan support, just as the federal RFRA did in 1993.
- In fact, many original supporters of the federal RFRA, including members of Congress who voted for the law and advocates who supported it, have withdrawn their support for the federal RFRA because it has been interpreted and applied in ways they did not expect at the time they lent their endorsement to the law.
The letter is available here.
Letter to Georgia Legislature Concerning HB 29, "Preventing Government Overreach on Religious Expression Act"
Legislatures around the country are considering new "religious freedom" bills with dangerously broad language that would provide individuals and businesses in many states with an license to discriminate. This letter, which PRPCP helped prepare, explains the problems with a proposed "religious freedom" bill in Georgia, and illustrates the ways in which the Georgia bill, and others like it, should be amended to limit the potential discriminatory impact on women, LGBT individuals, and other groups vulnerable to discrimination in the name of "religion.
The letter is available here.
Affordable Care Act Contraceptive Coverage Accommodation
In August 2014, the Obama Administration responded to the Supreme Court’s opinion in Hobby Lobby and its order in Wheaton College by issuing two new sets of regulations to govern the accommodation process for employers with religious objections to the Affordable Care Act’s contraceptive coverage requirement. One was an interim final regulation, promulgated by the Department of Labor, that responded to the Wheaton College order by allowing objecting non-profit organizations that believe notifying their insurance company or third-party administrator (TPA) of their objection is also a violation of their RFRA rights to simply notify the government directly, after which DOL and HHS will work together to notify the insurance company (or third-party administrator). The other was a proposed regulation that would define what kinds of for-profit entities could seek an accommodation under RFRA based on the Hobby Lobby ruling.
These regulations were open for public comment, and the Public Rights / Private Conscience Project drafted letters on both rules that were signed by over 60 prominent legal academics. Our comments can be viewed in full below:
- Comments to HHS signed by 40+ corporate law experts advising that accomodation be available only to limited set of for-profit entities that can demonstrate religious commitment and unanimous agreement to seek an accommodation, submitted October 21, 2014.
- Comments to HHS signed by 20+ law and religion scholars highlighting Establishment Clause problems with ACA contraceptive coverage requirement accommodation process for for-profit entities, submitted October 21, 2014.
- Comments to DOL signed by 20+ law and religion scholars highlighting Establishment Clause problems with ACA contraceptive coverage requirement accommodation process for non-profit organizations, submitted October 21, 2014.
LGBT Workplace Equality Executive Order
In the summer of 2014, as President Barack Obama prepared to sign a highly-anticipated executive order prohibiting federal contractors from engaging in workplace discrimination on the basis of sexual orientation or gender identity, some religious groups and several law professors pressured the President to include exemptions for federal contractors that objected to employing LGBT people altogether on the basis of their religious faith. In response, the Public Rights / Private Conscience Project published an open letter to President Obama signed by 54 prominent legal scholars, urging the President to resist including religious exemptions language in the executive order. On July 21st, President Obama signed Executive Order 13672 without including any additional religious exemptions, with Center for Gender & Sexuality Law Director Katherine Franke in attendance. Our letter can be viewed in full below:
- Letter urging President Obama to refrain from including additional religious exemptions in LGBT exeutive order, published July 14, 2014.