Welcome to the Religion Section of our webpage. This front page will reflect our most current information on either constitutional law or statutory law on religion affecting educational institutions.
Contraceptive Mandate Litigation and Regulations
PPACA, Miscellaneous Minimum Essential Coverage Provisions, 78 Fed. Reg. 7348, Feb. 1, 2013. Includes Student Health Insurance Plans. The proposed rule at §156.602 declares that self-funded student health coverage offered to students by an institution of higher education as defined in the Higher Education Act, where the institution assumes the risk for payment of claims, qualifies as minimum essential coverage under the Affordable Care Act (ACA). Individuals covered by these plans would not be subject to the shared responsibility payment for not maintaining minimum essential coverage required by Sec. 5000A of the ACA.
HHS Proposed Rules on Contraceptive Mandate: Religious Accommodation, released 2/1/13. Comments due 60 days after published in the Federal Register. Actual document published in Federal Register is at 78 Fed. Reg. 8456 (Feb. 6, 2013). This proposed rule is the follow up to the March 21, 2012 ANPR that indicated the government would propose changes for religious organizations with objections to the mandate. In this proposed rule, there are several proposed approaches for self insured religious entities. The proposed rule would amend the exemption for religious group health plans by eliminating the first three prongs of the test for religiosity proposed in the August 3, 2011 interim final rule. Only the fourth prong will remain, which is the exemption will apply to an employer that is organized and operates as a nonprofit entity referred to in Section 6033(a) (3) (A) (i) or (iii) of the U.S. Tax Code. An accommodation would be provided for organizations (including institutions of higher education) that meet the following criteria:
(1) The organization opposes providing coverage for some or all of any contraceptive services required to
be covered under § 147.130(a)(1)(iv) on account of religious objections.
(2) The organization is organized and operates as a nonprofit entity.
(3) The organization holds itself out as a religious organization.
(4) The organization maintains in its records a self-certification, made in the manner and form specified by the Secretary of Health and Human Services, for each plan year to which the accommodation is to apply, executed by a person authorized to make the certification on behalf of the organization, indicating that the
organization satisfies the criteria in paragraphs (b)(1) through (3) of this section, and, specifying those
contraceptive services for which the organization will not establish, maintain, administer, or fund coverage,
and makes such certification available for examination upon request.
Coverage of the contraceptives is to be arranged by provision of the coverage through a separate plan administered by insurers. The insurers would be credited by the federal government for providing this stand alone coverage by reducing a user fee insurers must pay to sell policies through newly created health exchanges. The revised policy does not cover secular employers who have owners who oppose the mandate. The Department is considering different approaches for how to deal with providing coverage to participants and beneficiaries in plans that are self-insured plans maintained by eligible organizations.
Roman Catholic Archdiocese et al. v. Sebelius, Memorandum Opinion dismissing case for lack of ripeness, but declining to follow the decision in the Wheaton College case below. U.S. Dist. Court, D.C. (Case # 12-0815) Jan. 25, 2013. This is The Catholic University case.
Hobby Lobby Stores, Inc.et al. v. Sebelius, Denial on Dec. 26, 2012 by Supreme Court (per Justice Sotomayor) of Hobby Lobby Stores petition for injunction on enforcement of mandate pending appeal. As a non-grandfathered plan the mandate applies to these employers effective Jan. 1, 2013.
Korte et al. v. Sebelius, (C.A. 7th Cir.) Case 12-3841, Dec. 28, 2012.
The Kortes and their construction company appealed the denial of their motion for a preliminary injunction against enforcement of provisions of the PPACA requiring the company to purchase a health insurance plan that includes no cost sharing coverage for contraception and sterilization. The motion for an injuction was granted by the 7th Circuit Court of Appeals. The court concluded the Kortes have established a reasonable likelihood of success on the merits and irreparable harm, and that the balance of harm tips in their favor. "RFFA prevents the federal government from imposing a substantial burden on a person's excercise of religioun even if the burden results from a rule of general applicability unless the government demonstrates that the burden in (1) in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling government interest." The court applied the strict scrutiny test and found the government had not shown a likelihood of meeting the compelling interest test, only a generalized interest, not have they shown irreparable harm.
Monaghan and Domino's Farms Corp. v. Sebelius, Case No. 12-15488 (E.D. Mich.) filed 12-30-12.
Thomas Monaghan's emergency motion for a temporary restraining order against enforcement of the mandate is granted. The suit was brought contending the ACA mandate violates the RFRA, the APA, and the First Amendment (Free Exercise, Free Association, Establishment and Free Speech clauses). Exerpts from the decision are below.
On Standing:
Monaghan states that once the mandate takes effect, he—as sole owner and director of DF—will be required by law to provide, through DF, health insurance coverage for contraception. Monaghan asserts that acting to have his company provide such coverage would cause him to commit a grave sin according to his religious beliefs. This argument is well-taken, since DF cannot act (or sin) on its own. Therefore, even though the ACA does not literally apply to Monaghan, the Court is in no position to declare that acting through his company to provide certain health care coverage to his employees does not violate Monaghan’s religious beliefs. They are, after all, his religious beliefs.
On Substantial Burden:
The Supreme Court has held that “putting substantial pressure on an adherent to modify his behavior and to violate his beliefs” substantially burdens a person’s exercise of religion. Thomas, 450 U.S. at 718. As noted, the Court is in no position to decide whether and to what extent Monaghan would violate his religious beliefs by complying with the mandate. ***
As such, the Court will assume that abiding by the mandate would substantially burden Monaghan’s adherence to the Catholic Church’s teachings.
Narrow Tailoring:
Plaintiffs propose that the Government could provide the contraceptive services directly, or perhaps offer incentives to employers who provide for such services (as opposed to sanctioning employers who do not). In dealing with nearly identical factual circumstances, other courts have found that the government failed to meet its burden of proof. ***Yet at this point, the Court has insufficient information before it to adequately determine whether the Government’s interests are sufficiently “compelling,” or whether the Government’s actions are the least restrictive. Thus the Government has failed to carry its burden.
Wheaton College/Belmont Abbey v. Sebelius et al., 12/18/12 Per Curiam Order of the U.S. Court of Appeals for the D.C. Circuit.
These two cases were held in abeyance by an order of the court, pending publication of a promised new NPRM by March 30th, 2013. Standing was found, but the court said ripeness was a more difficult and thus put the proceedings on hold. The court stated as follows:
At oral argument, the government went further. First, it represented to the court that it would never enforce [the Mandate] in its current form against the appellants or those similarly situated as regards contraceptive services. There will, the government said, be a different rule for entities like the appellants, and we take that as a binding commitment. The government further represented that it would publish a Notice of Proposed Rulemaking for the new rule in the first quarter of 2013 and would issue a new Final Rule before August 2013. We take the government at its word and will hold it to it.
Roman Catholic Archdiocese of New York, et al. v. Sebelius, et al., 12 Civ. 2542, filed 12/5/12 (U.S. Dist. Court E.D. New York)
The court rejected the reasoning found in many other court cases on the same topic and found that plaintiffs in this case plaintffs had standing and the temporary enforcement safe harbor does not prevent them from establsing imminent injuries. The court concluded the other courts had overestimated the significance of the ANPRM. (In the Wheaton/Belmont Abbey case above one of the Judges at oral argument noted the ANPRM was no more significant than a press release and no more binding.) Injury in fact can be economic or non-economic including (quoting a 2d Cir case) “a spiritual stake in First Amendment values.”
The court also found that because the regulation was final the Mandate was ripe for review.
College of the Ozarks v. U.S. Dept. of Health and Human Services et al, filed Sept. 17, 2012.
Wheaton College v. Sebelius, Case No. 1:12-cv-1169. Notice of Appeal (8-29-12) in the U.S. Dist. Court for DC, appealing the 8-24-12 decision by U.S. Dist. Judge Ellen Segal Huvelle granting the Government's motion to dismiss on the grounds that application of the preventive services mandate was hypothetical at this point in time.
Guidance on Temporary Enforcement Safe Harbor issued August 15, 2012.
Court decision granting summary judgment to defendant institution and dismissing breach of contract and racial discrimination claims filed by seminary faculty member following the elimination of his position due to a re-structuring of the seminary’s curriculum.The seminary was able to claim ministerial exception under Hosanna Tabor as plaintiff was hired in part to further spiritual education.
Newland v. Sebelius et al, Civil Action No. 1:12-cv-1123-JLK, (U.S. Dist. Court for the District of Colorado)
Decided July 27, 2012. In this case the court granted a preliminary injunction to a secular for profit employer owned by Mr. Newland. In accord with his Roman Catholic religious principles, he provides a self funded health care plan to his employees that does not cover contraceptives, sterilization or abortifactents. The plan is not grandfathered under the PPACA, and there is no religious employer exemption available for the company. The court granted the injunction enjoining Sebelius et al. from any application or enforcement or imposition of penalities against the Plaintiff. The court found the new law would substantially burden Plaintiff's free excercise of religion. The court flatly rejected defendant's argument that the injunction was contrary to the public interest because it would undermine the goal of providing "preventive health care", as the government had provided way too many exemptions to the law undermining the "alleged public interest" and in any event the government goal was outweighed by the public interest in free exercise of religion. The court found RFRA provided adequate grounds for injunctive relief.
State of Nebraska v. Sebelius et al. Civil Action No. 4:12CV3035, (U.S. Dist. Court for the District of Nebraska), Decided July 18, 2011. This case was dismissed for lack of standing. The court found the plaintiffs Pius X and Catholic Social Services had failed to plead specific facts showing they would not be grandfathered and thus could not show they would be subject to the rule. The court found Catholic Mutual's argument that it would suffer harm due to inability to change plan to maintain grandfathered status insufficient to allege standing to sue. The individual plaintiffs were also found to lack standing. The State of Nebraska was found not to have made a case for standing either, not meeting the burden of suffering direct injuries from defendant's challenged conduct. The court further noted that even if the State plaintiffs were able to establish Article III standing, the court would dismiss the claims on the ground they do not fall within the zone of interests protected by the First Amendment or RFRA, buying the defendants argument that the clauses in question and RFRA protect individual and not state rights. The court went on to opine in dicta that the claims were not ripe in light of the temporary enforcement safe harbor and the ANPRM.
Belmont Abbey College v. Sebelius et al.Civil Action No. 11-1989 (U.S. Dist. Court for the District of Columbia) Decided July 18, 2012. This case was dismissed for lack of standing.
UPSHOT: No standing because the rule is not final; not ripe for similar reasons. Court considers NPRM (and especially ANPRM) in general to be a preliminary and changeable policy commitment by Federal Government – and in the HHS case, the latest ANPRM (Mar 2012) an express and presumed credible indication of Federal Government's flexibility on the issue.
COURT’S REASONING.
Standing. ANPR is published proof of Federal Government's flexibility and therefore Belmont injury “too speculative to confer standing given the government’s clear intention to amend the regulations before the safe harbor lapses in order to accommodate” people like us.
• “They have published their plan to amend the rule to address the exact concerns plaintiff raises in this action…[showing] they intend to finalize the changes before the temporary enforcement of the safe harbor ends.”
Ripeness. Not ripe because agency has “interest in crystallizing its policy before that policy is subjected to judicial review.”
• Not “final enough” (again in light of ANPRM) to merit consumption of judicial resources: the “proposed rulemaking might obviate the need for judicial review” and since court “could not know what shape the final rule would take” it shouldn’t hear the case - yet.
• New set of comments coming, therefore Federal Government could change its mind.
• Reject Belmont Abbey argument that it’s as good as final: “The ANPRM merely ‘presents questions and ideas to help shape discussions’” regarding how to accommodate us.
• Reject Belmont Abbey argument that Federal Government can manipulate the process by suggesting possibility of change, stretching out the timeline and making them spend resources and worry anticipating outcome: maybe later but not valid argument right now, no evidence that ANPRM a “non-substantive, thinly veiled attempt to evade review,” e.g., without an end date.
• Can come back to us once rule is final and unchanged.
• Fact that Belmont Abbey might incur costs anticipating the outcome of the rule is “not sufficient…to constitute a hardship.”
FAVORABLE ANALYSIS.
Standing – personal stake, imminent injury. Requires concrete and particularized, actual/imminent harm.
• Agrees must defer to our judgment that not grandfathered.
• Agrees that the temporary enforcement of the safe harbor is not enough basis to forestall assertion of harm – even if 2-3-6 years down the road it’s merely a delay of enforcement and does not make the injury less concrete. It “merely delays enforcement,” which “is not too remote.” “Thus, postponing enforcement…does not defeat standing.”
The Catholic University of America joined 42 other plaintiffs across the country on May 21st in filing suit against the federal government because of the HHS contraceptive mandate that would force all institutions to pay for contraceptive coverage, which includes sterilization and drugs that cause abortions, all of which are contrary to the Catholic faith. The suit argues that the mandate violates the First Amendment and the Religious Freedom Restoration Act in forcing speech and actions contrary to the University’s deeply held religious beliefs, and the that notice and comment procedure violated the Administrative Procedures Act.
President Garvey's letter to The Catholic University Community
Archbishop of Washington et al.v. Kathleen Sebelius et al., Case No. 1:12-cv-00815
Complete list of all May 21 Complaints on the Becket Fund Page (scroll down)
Student Health Insurance Final Rule, 77 Fed. Reg. 16453, March 21, 2012
This rule brings all except for self funded student health plans under the purview of the PPACA by defining student health insurance as a type of individual health coverage. The contraceptive mandate is made applicable to student health insurance plans as well, through this action. The amendment applies to plans effective for policy years beginning after July 1, 2012, with non-profit religious institutions of higher edcation qualifying for a one year transition plan until the plan year beginning after August 1, 2013. The rule becomes effective April 20, 2012. There is a phase in for restrictions on annual dollar limits, with no annual dollar limits for policy years beginning on or after Jan. 1, 2014. If the student health insurance plan is not a grandfathered plan, then effective with the upcoming policy year, religious institutions of higher education will be required to maintain on file a self certification as to the qualification for the exemption and sending a *requisite notice* to students enrolled in the plan. This notice presumably means the notice that the institution the plan qualifies for a safe harbor, and may have to direct the student as to where to find contraceptive coverage. As with much of the mandate and related abortion coverage (see below on health exchanges) the rules are anything but clear.
See "Catholic Colleges Upset by HHS Rule Requiring Student Health Plans to Comply with Mandate" posted 3/21/12 in the National Catholic Register. The article notes as follows:
Catholic colleges and universities do not qualify for the narrow religious exemption to the mandate. Rather, they will likely fall under a second set of guidelines that the Obama administration describes as its “accommodation” for religious freedom.
The implementation of that accommodation has not yet been finalized and is currently the subject of a 90-day public comment period.
However, initial statements by the administration have suggested that religious organizations will be required to contract with an insurance provider, or third-party administrator, in the case of self-insured organizations, that will offer the coverage that the organizations find objectionable
Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg. 16501, March 21, 2012.
Advanced Notice of Proposed Rulemaking. Comments due June 19, 2012.
This rule sets up the questions and proposals for making insurance companies and third party administrators cover the cost of contraceptive coverage when the entity with the plan is a religious entity with objections to the contraceptive mandate. This is the so called Obama *accommodation* for religious employers. All religious employers should read this rule and other rules on this page. The rule notes that states with religious exemptions to contraceptive mandates would not be allowed to continue offering the exemption for religious organizations to the extent it conflicts with this rule.
PPACA: Establishment of Exchanges and Qualified Health Plans: Exchange Standards for Employers; Final Rule, Interim Final Rule to be posted March 27, 2012 in Federal Register. See page 627 forward for segregation of funds for abortion services, along with the requirement when calculating cost of providing abortion services, to estimate the cost at not less then $1 per month per enrollee. See also Section 1303 of the PPACA.
Ave Maria University v. Kathleen Sebelius et al
(Middle District Fla. No 12-CV-88) (filed Feb. 21, 2012)
Geneva College v. Kathleen Sebelius et al. (Western District Pennsylvania) (filed Feb. 21, 2012)
States of Nebraska et al. v. U.S. Dept. Health and Human Services, et al. (U.S. District Court District of Nebraska) (filed Feb. 23, 2012)
Belmont Abbey College v. Sebeluis et al., Case No. 1:11-CV-01989
Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services under PPACA, 77 Fed. Reg. 8725 (Feb. 15, 2012)
These regulations finalize, without change, interim final regulations from Aug. 3, 2011 that require religiously affiliated organizations, either self insured or with group insurance coverage to offer contraceptive coverage. Per a statement on 2-10-12 the White House tried to quiet the firestorm brought on by the 1-20-12 statement by Sebelius by stating that Catholic Universities and hospitals and other religiously affilated organizations may be able to obtain an out from the mandate as long the charities insurer provides contraceptive coverage to the covered employees and beneficiaries. The economics of this game plan have not been worked out, and some have pointed out there is a limited pot of health care dollars, and one way or another employees of universities and hospitals, along with the insitutions themselves, may be subsidizing the cost of the coverage.
The preamble makes the following points:
- Appropriate to take into account “religious beliefs of certain religious employers” and “religious exemption is consistent with the policies in some States.”
• Several mentions that some commentators “urged that the exemption… be rescinded in its entirety due to the importance of extending these benefits to as many women as possible.” Some also urged that Govt “monitor [health] plans to ensure that the exemption is not claimed more broadly than permitted.”
• Multiple mentions that contraceptives constitute “a basic health care need and would significantly reduce long-term health care costs.”
• Women “have unique health care needs and burdens. Such needs include contraceptive services.” Status quo “places women in the workforce at a disadvantage compared to their male co-workers. …[C]ontraception improves the social and economic status of women.”
• Acknowledges that some advocated widening exemption and objected to paying for such coverage or being obliged to provide when contrary to their religious beliefs.
• An exemption beyond the narrow one in the original rule (i.e., one that religious IHEs advocated) “would lead to more employees having to pay out of pocket for contraceptive services, thus making it less likely that they would use contraceptives, which would undermine the benefits.”
• In addition, such an exemption “would subject their employees to the religious views of the employer…thereby inhibiting the use of contraceptive services.”
• Conclusory assertion that this is a neutral law of general application, no substantial burden on free exercise, does serve compelling governmental interests, and is least restrictive means.
- Guidance is being issued contemporaneous with these final regulations” to provide a 1-year safe harbor during which the Federal Government will work with religiously affiliated employers to “develop alternative ways of providing contraceptive coverage without cost sharing.” This would require “issuers to offer insurance without contraceptive coverage to such an employer and simultaneously to offer contraceptive coverage directly to the employer’s plan participants who desire it, with no cost sharing.”
The rule linked above does not contain specifics on what will be required to qualify for an exemption, or if in fact an exemption must still be sought.
A February 11, 2012 editorial in the Wall Street Journal titled "Immaculate Contraception" highlights the smoke and mirrors economics of the latest announcement by the White House.
On January 20, 2012, the Obama Administration release two conflicting documents. The first document was a 1-20-12 Proclamation of Religious Freedom Day.
This document states as follows:
My Administration continues to stand with all who are denied the ability to choose, express, or live their faith freely, and we remain dedicated to protecting this universal human right and the vital role it plays in ensuring peace and stability for all nations.
Also on 1-20-12, the Department of Health and Human Services released a statement that the contraceptive mandate will become effective August 2012. The statement noted as follows:
Nonprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law. Employers wishing to take advantage of the additional year must certify that they qualify for the delayed implementation.
It is not immediately clear what the certification will require. In the meantime, religous employers who do not offer birth control will be required to tell their employees where they may obtain it. The USCCB has vowed to fight the mandate, and posted a video statement by Archbishop Timothy Dolan.More thoughtful commentary on governmental process was posted by Ross Douthat on Jan. 28, 2012, titled Government and its Rivals.
Note that currently student health insurance plans are outside the purview of the PPACA and thus not covered by the mandate. See Student Health Insurance Coverage, Proposed Rule, 76 Fed. Reg. 7767, Feb. 11, 2011.This distinction seems to get glossed over in much of the coverage of the mandate.
Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, No. 10-553, Decided Jan. 11, 2012, U.S. Supreme Court
In a unanimous decision, the S. Ct.reaffirmed the application of the ministerial exception under Title VII. In this case, the Hosanna-Tabor Evangelical Lutheran Church (Church) hired a subsitute teacher to replace a commissioned minister teacher (Cheryl Perich) who had been on half the year with narcolepsy. When Perich stated she was ready to return to the classroom, the principal advised they had contracted with another teacher and also expressed concern about Perich's readiness to return to the classroom. The congregation offered to pay part of her health insurance in exhange for her resignation. Perich instead filed a claim with the EEOC alleging disability discrimination. The EEOC brought suit against the Church alleging that Perich had been fired in retaliation for threatening to file and ADA lawsuit. The Church has a principle of internal dispute resolution and responded that the suit was barred by the First Amendment as this claim concerned an employment relationship between a religious institution and one of its ministers. While the 6th Circuit Court of Appeals held for the teacher, the U.S. Supreme Court reversed and held for the Church. Excerpts from the decision follow.
Perich taught kindergarten during her first four years at Hosanna-Tabor and fourth grade during the 2003–2004 school year. She taught math, language arts, social studies, science, gym, art, and music. She also taught a religion class four days a week, led the students in prayer and devotional exercises each day, and attended a weekly school-wide chapel service. Perich led the chapel service herself about twice a year.
*****
By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.
******
We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.
****
Having concluded that there is a ministerial exception grounded in the Religion Clauses of the First Amendment, we consider whether the exception applies in this case. We hold that it does.
Every Court of Appeals to have considered the question has concluded that the ministerial exception is not limited to the head of a religious congregation, and we agree. We are reluctant, however, to adopt a rigid formula for deciding when an employee qualifies as a minister. It is enough for us to conclude, in this our first case involving the ministerial exception, that the exception covers Perich, given all the circumstances of her employment.
To begin with, Hosanna-Tabor held Perich out as a minister, with a role distinct from that of most of its members. When Hosanna-Tabor extended her a call, it issued her a “diploma of vocation” according her the title “Minister of Religion, Commissioned.” App. 42. She was tasked with performing that office “according to the Word of God and the confessional standards of the Evangelical Lutheran Church as drawn from the Sacred Scriptures.” Ibid. The congregation prayed that God “bless [her] ministrations to the glory of His holy name, [and] the building of His church.” Id., at 43. In a supplement to the diploma, the congregation undertook to periodically review Perich’s “skills of ministry” and “ministerial responsibilities,” and to provide for her “continuing education as a professional person in the ministry of the Gospel.” Id., at 49.
Perich’s title as a minister reflected a significant degree of religious training followed by a formal process of commissioning. To be eligible to become a commissioned minister, Perich had to complete eight college-level courses in subjects including biblical interpretation, church doctrine, and the ministry of the Lutheran teacher.
****
In light of these considerations—the formal title given Perich by the Church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the Church—we conclude that Perich was a minister covered by the ministerial exception.
****
The EEOC and Perich suggest that Hosanna-Tabor’s asserted religious reason for firing Perich—that she violated the Synod’s commitment to internal dispute resolution—was pretextual. That suggestion misses the point of the ministerial exception. The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful—a matter “strictly ecclesiastical,” Kedroff, 344 U. S., at 119—is the church’s alone.
For an in depth analysis by two attorneys from Wiley Rein who filed an amicus brief in the case on behalf of religious groups see *The Broad First Amendment Rights of Religious Groups.* See also *Hosanna in the Highest* by Michael Stokes Paulsen, Jan. 13, 2012, The Witherspoon Institute Public Discourse.
Banzhaf v. Garvey; DC Office of Human Rights.Docket No. 11-343-EI 11/29/11
Professor John Banzhaf III, a law professor at George Washington University, filed a complaint of discrimination on July 8, 2011 against President John Garvey, President of The Catholic University of America, in his individual capacity. The complaint alleged that eliminating mixed gender dorms on the CUA campus and requiring students to live in single sex dorms constituted gender discrimination under the DC Human Rights Act. Respondent requested dismissal of the complaint on the grounds that the University had not engaged in or aided and abetted unlawful sex discrimination by institution of the single sex dorm policy. Respondent also asserted that Title IX allows for same sex dormitories. The University also asserted that the policy was implemented for legitimate reasons, including to advance the University's religious mission.
The DC Office of Human Rights granted Respondent President Garvey's motion to dismiss, and stated as follows:
After examining the legislative history of the Act, District case law, Title IX, and other
applicable federal precedent, OHR finds that Complainant fails to state a claim for which relief
can be granted under the Act because same-sex dormitories do not constitute unlawful
discrimination. We hold that the DCHRA does not forbid colleges and universities from making
sex-based distinctions between students. We agree that to follow Complainant's reasoning would
include a prohibition on same-sex bathrooms, locker rooms, and sports teams, which would lead
to absurd results. ****
Finally, we heavily base our decision on Title IX. This law specifically states that same-sex
housing policies on college campuses do not constitute "discrimination" on "the basis of sex."
See 20 U.S. C.§ 1686.
Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46621 (August 3, 2011) Interim Final Rule with Request for Comments.
For an excellent summary of why the contraceptive mandate (and very narrow exemption for *religious employers*) violates both the Religion and Free Speech Clauses of the Constitution, see the USCCB article on the mandate, as well as comments submitted to HHS by USCCB, which are linked from the bottom of the article.
St. Xavier University and St. Xavier University Adjunct Faculty Organization, IEA-NEA, Case 13-RC-22025, NLRB, Region 13, decided May 26, 2011. The NLRB declined to follow , and ruled that St. Xavier was secular and thus the NLRB granted a petition for formation of a collective bargaining unit by adjunct faculty. For more see commentary by the Cardinal Newman Society and a paper titled the NLRB's Assault on Religious Liberty.
Final Rule, Regulation for the Enforcement of the Federal Health Care Provider Conscience Protection Laws, 76 Fed. Reg. 9968, Feb. 23, 2011, effective March 25, 2011.This rule rescinds in part and revises the Dec. 19, 2008 final rule on this topic. The rule clarifies at 45 CFR § 88.2 the process for handing complaints by health care providers that they have been discriminated against on the basis of their religion under these rules. OCR will received the complaints.
These rules, known collectively as the "Church Amendments" are codified at 42 USC § 300a-7. There are five separate conscience provisions contained in the US Code, set forth in sections a-e. The Public Health Service Act at 42 USC § 238n prohibits the federal government and state and local governments receiving federal financial assistance from discriminating against a health care entity that exercises its religious principles and refuses to undergo training in or make arrangements for abortions. The related Weldon Amendment has been repeatedly readopted in appropriations bills. This amendment (apparently not codified) provides as follows:
"[n]one of the funds made available in this Act [making appropriations for the Departments of Labor, Health and Human Services, and Education] may be made available to a Federal agency or program, or to a state or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.’’
In addition, the Patient Protection and Affordable Care Act contains new health care provider conscience protections within health insurance exchanges. See Section 1303(b)(4) of the Act. See also Executive Order 13535, Ensuring Enforcement and Implementation of Abortion Restrictions in the Patient Protection and Affordable Care Act.
Briefs on Appeal to US Supreme Court of Walsh et al. v. Badger Catholic
Brief by Badger Catholic in Opposition
Brief by American Council of Education in support of University of Wisconsin
Editor's Note: The decision in the case below is being appealed. (4/11)
Manhattan College v. Manhattan College Adjunct Faculty Union, New York State United Teachers, AFT/NEA/AFL-CIO, NRLB, Region 2, Case No. 2-RC-23543, January 10, 2011.
In this case, the Acting Regional Director for Region 2 decided to ignore the law established by Carroll College Inc. v. NLRB and University of Great Falls v. NLRB (which both relied upon a US Supreme Court decision NLRB v. Catholic Bishop of Chicago (1979). The Director held that it was permissible for the NRLB to undertake the task of judging just how Catholic Manhattan College is. The three part test from Great Falls states that a school is exempt from NLRB jurisdiction if it 1) holds itself out to students, faculty and the community as providing a religious educational environment; 2) is organized as a *nonprofit*; and 3) is affiliated with or owned, operated or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion. Manhattan Collge met this test, but the NLRB did not see it that way.
Christian Legal Society v. Wu, No. 06-15956; Order on remand to 9th Circuit Court of Appeals, Nov. 17, 2010.The issue before the court was whether or not the pretext issue of selective enforcement of the nondiscrimination policy raised by CLS was preserved. The court found it was not, as it was not included in the opening brief, and also CLS stipulated that the nondiscrimination policy was applied to all organizations. Thus, the argument not having been preserved, no further consideration was warranted. The court left open the possibility of new litigation if Hastings applies the policy in a discriminatory way.
Badger Catholic Inc. v. Walsh, et al., Nos. 09-1102 & 09-1112, 7th Cir. Ct. Appeals, decided Sept. 1, 2010.
In a follow up to University of Wisconsin v. Southworth, 529 U.S. 217 (2000) the University of Wisconsin-Madison was met with another challenge to how student fees would be allocated for university activities. Badger Catholic was recognized as a registered student organization in 2007. To obtain reimbursement for expenditures, each group must submit a budget for approval by the student government and then the administration. Badger Catholic's budgets have been rejected on the grounds that the speech was religious in character. The UW would not pay for three categories of speech: worship; proselytizing, and religious instruction. However, student activity fees could be used for discussion or debate from a religious perspective.
At issue were several programs, including a mentoring for busy students program that involved meeting with a spiritual director, including Catholic nuns and priests, and another program, a summer retreat, that included three masses and four prayer sessions. The UW denied funding for these programs on the grounds that it was against their policy. The district court concluded that reimbursing the expenses of religious speakers, through a program equally available to secular speakers, does not violate the Establishment Clause, and that having established a public forum (see Southworth above) the University must not exclude speakers who want to use the forum for worship.
The Court of Appeals agreed, holding that if the University of Wisconsin chose to pay for student led counseling, it could not exclude counseling that features prayer. The court reaffirmed that once the University creates a public forum, it must accept all comers, and is not free to shape the speech of Badger Catholic. The court stated there can be no doubt after Christian Legal Society that the University's activity fee must cover the six contested programs if similar secular programs are funded. The Court of Appeals noted that they believed the approach set forth in Widmar, Rosenberger v. Rector, and Southworth remained in place post Christian Legal Society, i.e. that universities must make recognition and funding decisions without regard to the speaker's viewpoint.
