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May 2015

Dear Friends:
Welcome to this months issue of our newsletter, Highlights from the Campaign to End the Use
of Religion to Discriminate. As always, there is activity to report. Here are a few highlights: the
Seventh Circuit again rejected the University of Notre Dames challenge to the accommodation
for nonprofits that object to the contraceptive coverage rule; U.S. Supreme Court Justice
Samuel Alito granted a stay of the non-profit accommodation in two cases pending the plaintiffs
petition for certiorari; and the U.S. House of Representatives passed a resolution of disapproval
to block D.C.s Reproductive Health Non-Discrimination Amendment Act (RHNDA), citing
concerns that the law does not provide sufficient accommodation for employers religious
exercise.
If there is someone you think would benefit from this newsletter or if you would prefer not to
receive future issues, please send an email to LibertyNewsletter@aclu.org.
Best,
Louise Melling
Deputy Legal Director, ACLU
Director, ACLU Center for Liberty

Litigation Highlights: Challenging Attempts to Use Religion to Discriminate

Attempts to Discriminate Against Women in the Name of Religion


In Insurance
As weve reported previously, in September 2014, the administration released an interim final
rule modifying the accommodation for religiously affiliated non-profit organizations that object to
the Affordable Care Acts contraceptive coverage provisions. The new rule allows such
organizations to notify the U.S. Department of Health and Human Services (HHS), rather than
their insurer or third-party administrator, of their objection to the coverage; HHS then notifies the
insurer of its need to provide coverage. Many non-profits maintain that the new rule also violates
their religious liberty and thus persist in their legal challenges to the accommodation.
Non-profit Cases:
Four appellate courts have issued decisions addressing RFRA challenges to the non-profit
accommodation. All four the D.C. Circuit, the Third Circuit, the Sixth Circuit, and the Seventh
Circuit have rejected these challenges.

The Sixth and Seventh Circuits addressed the previous iteration of the nonprofit accommodation, and both decisions issued before the Supreme Courts
decision in Hobby Lobby. In both cases, the Supreme Court granted certiorari for
the purpose of vacating the lower court decisions and remanded for
reconsideration in light of Hobby Lobby. The Supreme Court action in the Sixth
Circuit case Michigan Catholic Conference issued on April 27.

In the case from the Seventh Circuit, University of Notre Dame v. Burwell, the
court of appeals issued a new opinion on May 19, reaffirming the district courts
denial of Notre Dames request for a preliminary injunction against enforcement
of the rule. Once again, the court rejected Notre Dames argument that the nonprofit accommodation substantially burdens the universitys religious exercise by
requiring it to facilitate the provision of contraceptive coverage. It further held, in
light ofHobby Lobby, that the universitys proposed alternatives to the non-profit
accommodation would impose significant financial, administrative, and logistical
obstacles.

The D.C. Circuit and the Third Circuit addressed challenges to the
accommodation as modified by the administrations interim final rule.

The orders of the Third Circuit coming in three cases are stayed. Justice Alito
granted stays in two of the cases, Persico v. Secretary of U.S. Department of
Health and Human Services and Zubik v. Secretary of U.S. Department of Health
and Human Services. In light of Justice Alitos action, the Third Circuit then
granted a stay in the remaining case, Geneva College v. Secretary of U.S.
Department of Health and Human Services. (Justice Alito had directed the
government to respond to the stay motion. That response was due by April 20.
Given that there has been no further action by the Court, it would appear that the
stays will remain in effect pending resolution of the Zubik and Persico plaintiffs
petition for certiorari.)

In the case from the D.C. Circuit, Priests for Life v. U.S. Department of Health
and Human Services, the plaintiffs petition for en banc rehearing
was denied today.

Several other courts of appeals have heard argument in cases challenging the modified
non-profit accommodation. The Seventh Circuit heard oral arguments in the consolidated
cases Grace Schools v. Sebelius and Diocese of Fort Wayne-South Bend v. Sebelius on
December 3; the Tenth Circuit heard oral arguments in Little Sisters of the Poor Home for the

Aged v. Sebelius, Southern Nazarene University v. Sebelius, and Reaching Souls International
v. Sebelius on December 8; the Eighth Circuit heard oral arguments in Dordt College v.
Sebelius and Sharpe Holdings, Inc. v. U.S. Department of Health & Human Services on
December 10; the Second Circuit heard oral arguments in Roman Catholic Archdiocese of New
York v. Sebelius on January 22; the Eleventh Circuit heard oral arguments in Eternal Word
Television Network v. Burwell and Roman Catholic Archdiocese of Atlanta v. Sebelius on
February 4; and the Fifth Circuit heard oral arguments in the consolidated cases East Texas
Baptist University v. Sebelius,University of Dallas v. Burwell, Catholic Diocese of Beaumont v.
Burwell, and Roman Catholic Diocese of Fort Worth v. Sebelius on April 7. We await decisions
in those cases.

Most recently, the Seventh Circuit scheduled oral arguments in Wheaton College v.
Burwell for the morning of June 10. Wheaton College is the case in which the Supreme
Court granted a temporary injunction, preventing enforcement of the original non-profit
accommodation, just days after issuing its decision in Hobby Lobby.

For-profit Coverage:
In its decision in Hobby Lobby, the Supreme Court ruled that the contraceptive coverage rule
violated the religious freedom rights of objecting for-profit institutions, emphasizing that the
government had other means of ensuring coverage without burdening the businesses. In
particular, the Court emphasized that the government might extend the non-profit
accommodation to closely held for-profit entities.
As of today, there is not yet a rule providing coverage for employees and their dependents who
work for for-profit entities that object to coverage on religious grounds. Last fall, the
administration proposed a new rule extending its accommodation to closely held for-profit
corporations. The administration sought public comments on the rule. It specifically requested
comments on how to define a closely held for-profit corporation under the rule, as well as what
processes and documentation should be required to evidence a corporations religious objection
to the contraceptive coverage mandate. Although the comment period closed on October 21,
2014, the administration has yet to issue a new rule.
Other Cases:
We have previously reported on cases in Vermont and Rhode Island, where individuals
have filed lawsuits alleging that having to pay into a healthcare plan that covers abortion in
order to receive health insurance impermissibly burdens their religious beliefs, in violation of
RFRA and the First Amendment. In the Vermont case, Howe v. Burwell, the court heard
argument on the plaintiffs motion for preliminary injunction on April 9 and received the
governments motion to dismiss on May 1. In the Rhode Island case, Doe v. Burwell, the plaintiff
filed a notice of voluntary dismissal on May 18, after a health insurance plan that does not
include abortion became available.
Attempts to Discriminate Against LGBT Individuals in the Name of Religion
In Public Accommodations

Earlier this year, we reported on an Oregon administrative law judges interim


order ruling that bakery owners Aaron and Melissa Klein violated the states antidiscrimination law by refusing to provide a cake for a same-sex couples wedding. After
a hearing in March to determine damages, the judge released a proposed
order setting damages for the couple at $135,000. The Oregon Labor Commissioner has
authority to issue a final order in the case and uphold or adjust the administrative law
judges proposed damages award; the Labor Commissioners final order may then be
appealed to the Oregon Court of Appeals.

On December 6, 2013, the Colorado Civil Rights Commission ruled that Masterpiece
Cakeshop and its owner unlawfully discriminated against David Mullins and Charlie
Craig by refusing to sell them a wedding cake. Masterpiece Cakeshop appealed the
Commissions decision to the Colorado Court of Appeals, which is scheduled to hear
oral arguments in the case on July 7.

Other
On April 27, a county court judge in Kentucky ruled that the print shop Hands On Originals
did not violate a local anti-discrimination ordinance by refusing on religious grounds to print
shirts promoting the Lexington Pride Festival for the Aaron Baker for Gay and Lesbian Services
Organization. This ruling overturned an earlier ruling by the Lexington Human Rights
Commission that the print shops refusal to make the shirts was in violation of the ordinance.
The court held that Hands On Originals discriminated on the basis of the content of the
requested message, rather than the sexual orientation of its customers, and ruled that the
Commissions decision violated the First Amendments Free Speech Clause and the Kentucky
RFRA by ordering the shop to print a specific message that its owners opposed on religious
grounds. The Human Rights Commission has stated that it is exploring its legal options,
including the possibility of appeal.

On May 8, a woman in Missouri filed a lawsuit claiming that state laws requiring her
to read an informed consent booklet and wait 72 hours before receiving an abortion
burden her religious beliefs as a member of the Satanic Temple, in violation of the
states Religious Freedom Restoration Act. The woman, who filed the petition under the
name Mary Doe, includes as her religious tenets that her body is inviolable and
subject to her will alone and that she makes decisions regarding her health based on
the best scientific understanding of the world, even if science does not comport with the
religious or political beliefs of others.

State Legislation Highlights: Bills and Laws to Permit the Use of Religion to Discriminate

Our newsletter includes reports of significant recent activity on state legislation allowing
discrimination against women and LGBT individuals in the name of religion.
Religious Freedom Restoration Acts (RFRAs)
So far this year, RFRA bills have been introduced in at least sixteen states: Arkansas, Colorado,
Georgia, Hawaii, Indiana, Maine, Michigan, Montana, Nevada, North Carolina, Oklahoma, South
Dakota, Texas, Utah, West Virginia, and Wyoming. In some states, multiple RFRA bills have
been introduced. As of today, RFRAs have been enacted in two states (IN and AR), died in
eleven (CO, GA, HI, ME, MT, NV, OK, SD, UT, WV, and WY), and remain pending in three (MI,
NC, and TX)
Given the activity, we will not be providing detail each month on every bill but rather will report
movement on any bill and will identify RFRA bills introduced in the past month, highlighting their
distinctive features.
Bills that have died:

A bill in Hawaii (HB 1160) died this month with the end of the states legislative session.

A bill in Maine (LD 1340) was withdrawn after receiving significant criticism.

In Marriage
In response to advances in marriage equality, we continue to see bills introduced to prohibit the
issuance of marriage licenses for same-sex couples, as well as to provide the right to refuse to
issue marriage licenses, perform marriages, provide goods or services related to marriage,
and/or recognize otherwise lawful marriages that a person or business objects to on religious
grounds. Some of these bills are limited to marriages of same-sex couples, but the majority
would allow discrimination against any type of marriage. So far this year, ten states have
introduced such marriage refusals bills: Alabama, Arkansas, Louisiana, Minnesota, Missouri,
North Carolina, Oklahoma, South Carolina, Texas, and Utah. At this point, a limited marriage
refusals bill has been enacted in one state (UT); broader bills have died in five (AR, LA, OK,
MO, and UT), and remain pending in five (AL, MN, NC, SC, and TX).
New bills this month:

A new bill introduced in Minnesota (SF 2158) would allow government employees to refuse
to provide services that assist or promote the solemnization, formation, or celebration of any
marriage that would violate the employees sincerely held religious belief that marriage is only
the union of one man and one woman. It would also allow clergy members, religious
organizations, individuals, and small businesses to refuse to provide goods or services related
to the solemnization, formation, or celebration of a marriage for the same reasons.

Bills that have moved:


A Texas bill (HB 3567) which would allow clergy members and religious organizations to
refuse to solemnize a marriage; provide goods or services related to the solemnization,
formation, or celebration of a marriage; or treat a marriage as valid for any purpose if the action
would violate the individuals or organizations religious beliefs passed out of committee in the
House.

Bills that have died:


A bill in Louisiana (HB 707) that would prohibit the state from taking any adverse action
against a person based on the persons actions in accordance with a religious belief or moral
conviction about the institution of marriage died in committee today. After the defeat of the bill,
Louisiana Governor Bobby Jindal issued an executive order that purports to define person
under the state RFRA to include for-profit companies and grants protections from
adverse consequences (such as a denial of government contracts or funding, or the revocation
of a professional license) to businesses and individuals for actions taken based on their
opposition to marriage for same-sex couples.

Bills in Missouri (HB 1337 and SB 555) died this month with the end of the states legislative
session.

In Government Contracting
So far this year, bills were introduced in two states Indiana (SB 127) and Virginia (HB 1409)
that would sanction employment discrimination in the context of government contracts. Both bills
are now dead.
In Professional Services
We previously reported that Virginia and Tennessee have introduced bills that would allow
religious refusals in the provision of professional services, such as by licensed counselors or
social workers who refuse counseling to LGBT clients or women who are considering abortion.
So far this session, the Virginia bill (HB 1414) has died, while the Tennessee bills (HB
566 and SB 397) remain pending before their respective committees.
In Student Organizations
We previously reported on a number of bills that would prohibit public institutions of higher
education from denying funding or the benefits of official recognition to any religious student
group based on the groups requirement that its leaders or members adhere to its religious
beliefs, even when that means the group discriminates in violation of university policy. Bills have
been introduced in California, Colorado, Kansas, Mississippi, and Missouri. Bills in California
and Kansas remain pending. The California bill (AB 1212) is in committee before the Assembly,
and the Kanas bill (SB 175) passed out of committee in the House. Four bills those from
Colorado (HB 1037), Mississippi (HB 851), and Missouri (HB 104 and SB 248) have died.

In Health Care
So far this year, bills have been introduced in five states that would allow religious refusals in
the provision of health care: Alabama, Missouri, New Hampshire, New Mexico, and
Pennsylvania. The New Hampshire bill would allow religious refusals in health care services
generally. The Alabama, Missouri, New Mexico, and Pennsylvania bills specifically target
reproductive health care services.
The bills in Missouri (HB 432) and New Mexico (HB 390 and HB 391) are dead. Bills in New
Hampshire (HB 670) and Pennsylvania (SB 292) are still pending. The Alabama bill (HB 491),
which would permit a broad range of healthcare providers to refuse to provide any care related
to abortion including referrals, counseling, and recovery has passed out of committee in the
House.
Bills protecting against religious refusals in the provision of health care have been introduced
this year in two states: Illinois (SB 1564) and Washington (HB 1787 and SB 5770). The
Washington bills failed to pass this session. The Illinois bill would amend the states existing law
on health care refusals to say that health care providers may refuse service only where they
have in place clear protocols designed to ensure that patients will get the information they need
to understand their treatment options, make an informed medical decision, and obtain the
necessary care. That bill has passed the Senate and a House committee.
In Adoption
Bills that would authorize child care and placing agencies to refuse service on the basis of their
religious beliefs have been introduced in Alabama, Florida, Michigan, and Texas. In the last
month: the Michigan and Texas bills have moved; the Florida bill (HB 7111) died with the end of
the states legislative session; and the Alabama bills (HB 296 and SB 261) have not moved.
The Michigan bills (HB 4188, HB 4189, and HB 4190) had previously passed the House and
have now passed out of committee in the Senate. Taken together, these bills would allow an
agency that places children for adoption or foster care to refuse to provide any services
including placement with foster parents referred by the State Department of Human Services
that conflict with the agencys religious beliefs. The agency would be shielded from any
adverse consequences arising from its refusal, including lawsuits, denials of funding, or
cancellation of any governmental contracts. These bills are tie-barred to one another, which
means that all three must pass for any one of them to go into effect.
The Texas bill (HB 3864) passed out of committee in the House. The bill would prohibit
government entities, or any person contracting with the government, to refer or place children
with child welfare services, to discriminate against a child welfare service on the grounds that
the child welfare service: (1) declines on religious grounds to provide, facilitate, or refer a
person for child welfare services (e.g., by refusing to consider prospective foster parents, even
if that placement was in the childs best interest); (2) provides children in its care with a religious
education, including through placing the children in a private or parochial school; or (3) declines
to provide, facilitate, or refer a person for abortions, contraceptives, or drugs, devices, or
services that are potentially abortion-inducing.
* * * * *
For a full list of bills introduced this session that would allow religiously motivated discrimination
against LGBT individuals, please visit our anti-LGBT religious refusals legislation
page and interactive map.

Updates from the ACLUs Washington Legislative Office

Amendments to the DC Human Rights Act


On April 30, the House of Representatives passed by a vote of 228-192 H.J. Res 43, a
resolution of disapproval to block D.C.s Reproductive Health Non-Discrimination Amendment
Act (RHNDA) a law that protects D.C. employees from workplace discrimination based on
their reproductive health care decisions. There was bipartisan opposition to the resolution, with
13 Republicans voting against it.
As previously reported, the RHNDA is one of two recently approved District of Columbia antidiscrimination measures. The Human Rights Amendment Act (HRAA) which ensures that
religiously affiliated schools and universities in D.C. provide LGBT student groups equal access
to school facilities and services also faced a disapproval measure in the House, but that
measure never received a vote. Senate resolutions of disapproval on both
the RHNDA and HRAA were also introduced, but neither received a vote before the end of the
30-day congressional review period required under the Home Rule Act for all bills passed by the
D.C. Council. As a result, both D.C. laws took effect in D.C. on May 2.
Some Members of Congress are now demanding that the FY16 Financial Services and General
Government Appropriations bills include language to block the implementation and enforcement
of both D.C. laws.
Opponents of the RHNDA and HRAA measures maintain that they provide insufficient
accommodation for employers religious exercise.
Congressional Briefing on RFRA & Efforts to Use Religion to Discriminate
On April 23, Representative Bobby Scott (D-VA), Ranking Member on the House Committee on
Education and the Workforce, hosted a congressional briefing to explore the civil rights and
health care implications of the Federal Religious Freedom Restoration Act (RFRA) and similar
proposed bills and laws in the states. Panelists included representatives of the ACLU, National
Womens Law Center, Lambda Legal, and Professors Marci Hamilton of Cardozo School of Law
and Ira C. Lupu of George Washington University Law School. The panel was moderated by the
Rev. Barry Lynn, Executive Director of Americans United for Separation of Church and State.

Other

On May 8 and 9, the Petrie Flom Center for Health Law Policy, Biotechnology, and Bioethics at
Harvard Law School held its 2015 Annual Conference on Law, Religion, and Health in America.
The conference explored a number of contemporary legal problems relating to religious refusals
in the health care context. Information about the conference is available here.

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