Antidiscrimination Laws and Religious Exemptions: Implications for LGBT People and Persons Living With HIV

1. Antidiscrimination Laws and Religious Exemptions: Implications for LGBT People and Persons Living With HIV Daniel Bruner Senior Director of Policy May 1, 2015

2. Legal Protections for Religious Expression and Practice • First Amendment: “Free Exercise of Religion” • Exemptions in specific civil rights laws • Federal Religious Freedom Restoration Act • State “Religious Freedom” Laws

3. Potential Conflicts Between Religious Beliefs and Practices and Antidiscrimination Laws • Employment • Health insurance • Coverage of same-sex partners/spouses/families • Coverage of trans* care • Coverage of PrEP? • Health care • Goods and services if the business is a “public accommodation” (e.g., event venues, flowers, catering for same-sex weddings) • Generally the argument is that it violates my religious beliefs/practice to enable or be complicit in your sin.

4. Potential Conflicts Between Religious Beliefs and Practices and Antidiscrimination Laws • Same-sex marriage is the driver of recent controversies, but more is at stake • Affordable Care Act and access to reproductive health care, trans* health care, and health care for LGB people • Tension between protection of minority religious practices/communities and the obligations of all of us in a diverse, inclusive society (nondiscrimination, mutual respect) • What are the implications for the LGBT community as we move from a stigmatized minority into the mainstream?

5. Who is Claiming a Religious Exemption? • Traditional religious institution (e.g., church, synagogue, mosque, temple) • Educational or health care institution or other nonprofit with a religious affiliation • How strong is the affiliation? • For-profit business • How large? How many employees?

6. First Amendment: “Free Exercise of Religion” • Applies to federal, state, and DC laws and government actions • Right of religious institutions and associations, private individuals – and private companies/businesses? For-profit as well as nonprofit?

7. First Amendment: “Free Exercise of Religion” • General rule: a law substantially burdening the exercise of religion must be justified by a compelling government interest that cannot be met by less restrictive means. • The Supreme Court has ruled that this test does not apply to laws of “general applicability” even if they incidentally burden a religious practice.

8. First Amendment: “Free Exercise of Religion” • Most courts to date have ruled that private individuals and companies do not have a “free exercise” exception from state LGBT nondiscrimination laws. • Photographer who refused to photograph a gay wedding (New Mexico) • Florist who wouldn’t provide flowers for a gay wedding (Washington State) • Fertility clinic that refused services to a lesbian (California) • B&B that turned away a lesbian couple (Hawaii) • Gallery/event space that would not rent for a same-sex wedding (Iowa) • A Kentucky court just ruled (April 27) that a t-shirt company had a First Amendment defense when sued for refusing to print LGBT Pride t-shirts.

9. First Amendment: “Free Exercise of Religion” • Gay Rights Coalition v. Georgetown University (1987): DC Court of Appeals ruled that under the DC Human Rights Act, Georgetown must provide equal facilities and services to gay student organizations, and that the First Amendment was not violated because the University was not required to “endorse” the gay student groups or their aims. • Congress responded by amending the DC HRA to exempt religiously-affiliated educational institutions to deny funds, services, facilities and benefits to persons and organizations “promoting, encouraging, or condoning any homosexual act, lifestyle, orientation, or belief.” • In 2014, the DC Council amended the HRA to repeal this provision. The Mayor signed the bill and it has been submitted to Congress for review. Resolutions of disapproval were introduced in the Senate and the House, but the House has declined to take action, so the DC law will take effect on May 2.

10. First Amendment: “Free Exercise of Religion” • The federal courts have held that the first Amendment requires a “ministerial exception” to nondiscrimination laws for employees of religiously-affiliated institutions who have religious roles or functions – including teachers in religiously-affiliated schools. The Supreme Court endorsed this principle in 2012. • Who is a “ministerial” employee? What about teachers in parochial schools who teach secular subjects like math and history? The court cases are mixed.

11. Religious Exemptions in Civil Rights Laws • Federal, state and DC laws that protect people with HIV and LGBT people from discrimination contain exceptions for religious institutions to employ members of their own religions, to require employees to conform to their teachings, and to restrict housing to members of their religions. • Americans With Disabilities Act (Title I – employment) • Title VII (sex discrimination in employment – interpreted by some courts and agencies to include discrimination on the basis of gender identity or same-sex relationships) • DC Human Rights Act • Maryland civil rights laws • Title III of the ADA, which applies to privately owned or operated “public accommodations” (including health care organizations), exempts religiously-affiliated organizations altogether.

12. Religious Exemptions in Civil Rights Laws • Title IX prohibits sex discrimination by educational institutions receiving federal money. The law is being interpreted by the U.S. Department of Education, and some federal courts, to include discrimination against LGBT students and employees. • Title IX exempts religiously-affiliated schools if application of the law would be inconsistent with religious tenets. • The Department of Education has exempted several religious schools from the obligation to not discriminate on the basis of gender identity.

13. Religious Exemptions in Civil Rights Laws • The Affordable Care Act, Section 1557, imposes the nondiscrimination requirements of Title IX on health care providers and institutions, and health insurers, that receive federal financial assistance or participate in ACA programs (such as health insurance exchanges). • WWH and others are arguing to HHS that this protects LGBT people from health care discrimination. • Will the exemption in Title IX for religiously-affiliated schools apply to religiously-affiliated health care institutions under ACA Section 1557?

14. The Federal Religious Freedom Restoration Act • Enacted by Congress in reaction to Supreme Court rulings that the First Amendment does not protect against burdens on religious exercise imposed by laws of general applicability (e.g., prosecution of Native Americans who use peyote in religious rituals under federal and state drug laws). • Applies to federal and DC laws, but not to the states.

15. The Federal Religious Freedom Restoration Act • "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability,“ unless the Government "demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." • The “exercise of religion” is defined to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”

16. Burwell v. Hobby Lobby Stores (2014): What Was At Issue • Two private, closely-held companies owned by religious families engaged in for-profit businesses, with large numbers of employees (Hobby Lobby – 13,000; Conestoga Wood Specialties – 950) • Challenged HHS regulations under the ACA requiring employer health plans to cover all FDA-approved contraceptives. Objected to 4 procedures that they contended were similar to abortion (because they prevent a fertilized egg from attaching to the uterus). • HHS regulations exempted nonprofit “religious organizations” but not for-profit businesses.

17. Burwell v. Hobby Lobby: What the Supreme Court Held • RFRA should be construed broadly in favor of protecting religious beliefs and practices. • For-profit companies are “persons” under RFRA. • The two closely-held companies that brought suit can “exercise religion” subject to RFRA protections. • What about publicly-held corporations? The Court said that was a question for another day. • The companies had valid claims that the HHS regulations substantially burdened their exercise of religion. • Courts cannot evaluate the reasonableness of an asserted religious belief as long as it seems sincere and plausible.

18. Burwell v. Hobby Lobby:What the Supreme Court Held • The Court assumed that the government’s interest in providing full contraceptive coverage to women was “compelling”. • But the requiring these businesses to cover all contraceptive procedures in their health plans was not the “least restrictive means” to make all procedures available to women. • The regulations allowed religious nonprofit employers an “opt out” – to certify their objection and then the insurer would provide the coverage separately – that “opt out” could be provided to Hobby Lobby and Conestoga.

19. Burwell v. Hobby Lobby Stores: How Far Does It Go? • Some Catholic institutions and other religious nonprofits are arguing that even the self-certification discussed in the case requires them to be complicit in providing employees and their families with access to contraceptives. Unclear exactly how far they intend for this argument to go. How can individuals denied contraceptive coverage under an employer-sponsored health plan receive that coverage from the insurer, or the government itself, unless the employer provides notice that it won’t provide the coverage in its health plan? • On April 15, Justice Alito (author of Hobby Lobby) stayed an order of the U.S. Court of appeals for the Third Circuit ordering Catholic entities in Pennsylvania to provide the certification.

20. Burwell v. Hobby Lobby Stores: How Far Does It Go? • The Court noted that it was not deciding whether publicly-traded companies could claim they were “exercising religion” and invoke the protections of RFRA. • The Court also noted that RFRA might not exempt companies from every requirement they object to, such as vaccination laws. • The Court also observed that RFRA would not exempt employers from complying with race discrimination laws (it did not mention other civil rights laws).

21. Burwell v. Hobby Lobby Stores: How Far Does It Go? • Employment of LGBT people? • Health care coverage for same-sex partners/families of employees? • Trans* care and PrEP in employer-sponsored health insurance? • Supplying goods and services to LGBT customers?

22. The Controversy Over the Employment Non-Discrimination Act (ENDA) • Would prohibit discrimination in employment based on sexual orientation and gender identity. • The current draft would exempt religious organizations, and religiously-affiliated organizations that conduct secular activities (such as secular education, health care, social services), from the law completely. • Opposed by many (but not all) LGBT advocates on the grounds that the exemption is broader than Title VII, and, therefore, would endorse the view that LGBT discrimination is more worthy of accommodation than discrimination based on race, national origin, sex, religion, disability or age.

23. State “Religious Freedom” Laws • Federal RFRA does not apply to the states (but it does apply to DC). • There are “religious freedom” laws in 21 states currently. Many were enacted years ago, but recent controversies over LGBT rights and same-sex marriage have stimulated several recently-enacted laws and legislative efforts in many other states. • Most of the laws (and pending bills) do not explicitly single out LGBT people, but fears over the implications of same-sex marriage are driving the controversy.

24. State “Religious Freedom” Laws • A bill was introduced in the Virginia legislature in late 2014 stating: A person seeking to obtain or renew a license, registration, or certificate from the Commonwealth, its political subdivisions, or any agency, authority, board, department, or other entity thereof, shall not be required to perform, assist, consent to, or participate in any action or refrain from performing, assisting, consenting to, or participating in any action as a condition of obtaining or renewing the license, registration, or certificate where such condition would violate the religious or moral convictions of such person with respect to same-sex "marriage" or homosexual behavior. It was tabled by the Subcommittee.

25. State “Religious Freedom” Laws • The recent law in Indiana did not explicitly mention LGBT people, but went further than the federal law: • The Indiana statute expressly covered for-profit as well as nonprofit organizations and businesses. • It expressly applied in legal proceedings where the government was not a party (such as private discrimination lawsuits). (State law does not protect LGBT people in Indiana from discrimination, but some local ordinances do.) • In response to the public controversy, the law was amended to remove these provisions. • The new law in Arkansas, as amended before signed by the Governor, does not contain these particular provisions (but Arkansas does not have a state law protecting LGBT people from discrimination and recently passed a law prohibiting local governments from enacting laws more protective of civil rights than state law).

26. Questions to Ponder • Are there important differences between • a small, family-owned florist or photography business, or pizzeria, that objects to participating in a same-sex wedding; and • a business that employs thousands and that won’t hire LGBT people or restricts the health care coverage of its employees? • Should it matter whether the LGBT person or family denied service (or employment) has other readily-available options? • What about health care? • How should the LGBT movement balance respect for religious minorities (and diversity generally) against the importance of making LGBT equality and nondiscrimination the new normal? • The law privileges religious beliefs and practices over non-religious, philosophical or moral beliefs. Why? If religious practices deserve special protection, what are the norms which should bind everyone, regardless of their beliefs?