Author archives: Mary Beth Waddell, J.D.

The Supreme Court Goes Rogue on Sex Discrimination

by Peter Sprigg , Mary Beth Waddell, J.D.

June 17, 2020

Earlier this week, the Supreme Court re-wrote Title VII of the Civil Rights Act of 1964 by holding that sexual orientation and gender identity are included in the statute. 

The majority opinion in Bostock v. Clayton County, written by Justice Neil Gorsuch, claims to be using a textualist approach, yet its analysis and holding prove otherwise.

Justice Samuel Alito concisely opened his dissent with the summary: “There is only one word for what the Court has done today: legislation.” Justice Alito aptly compared this opinion to a pirate ship sailing under a textualist flag.

He went on to state, “Many will applaud today’s decision because they agree on policy grounds…. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not” (emphasis in the original).

Indeed, Justice Kavanaugh’s dissent seems to show sympathy for the policy outcome, yet he agreed that it is not within the Court’s constitutional boundaries to make this change.

Despite its improper analysis of other scenarios, the majority opinion properly makes reference to “an employer who fires a female employee for tardiness or incompetence or simply supporting the wrong sports team. Assuming the employer would not have tolerated the same trait in a man, Title VII stands silent.” Yet it does not carry this analysis through in the cases at hand. The proper analysis is whether or not an employer would fire a female employee for homosexuality or identification as the opposite sex, but would not fire a male employee for homosexuality or identification as the opposite sex.

This wrong legal analysis leaves many questions unanswered. In seeming acknowledgement of the policy Pandora’s box it has opened, the majority opinion acknowledges the Religious Freedom Restoration Act and the Ministerial Exception, but only to say that how either would be impacted by the decision is not currently before the court—thus inviting litigation. The Religious Freedom Restoration Act is under attack in Congress, and the scope of the Ministerial Exception is currently under consideration before the Court, so these legal protections for religious freedom  provide little solace.

Justice Alito rightly points out that Congress has repeatedly refused to include sexual orientation or gender identity in Title VII or other federal civil rights statutes. Language to do so is included in the Equality Act and other bills which are introduced year after year without success. Yet, with its decision, the Court has essentially enacted the employment provisions of the Equality Act.

Sexual orientation and gender identity nondiscrimination laws are unjustified in principle, because these characteristics are not inborn, involuntary, immutable, innocuous, or in the U.S. Constitution—unlike race and sex. In many situations, such laws pose a threat to religious liberty, which is protected by the Constitution. Not only that, but these laws pose a threat to women and, even those who identify as homosexual or transgender.

Justice Alito acknowledges numerous areas where the majority opinion could have serious implications:

  • Religious employers could face litigation and be compelled to “employ individuals whose conduct flouts the tenets of the organization’s faith [which] forces the group to communicate an objectionable message.”
  • Transgender identified individuals could be entitled to use the bathroom, locker room, etc. of their choice.
  • Women athletes could be forced to compete against athletes who are biologically male in both scholastic and professional sports.
  • Schools could be prevented from having sex-separated dormitories and housing.
  • Employers could be forced to cover treatments and surgeries that are not deemed medically necessary and, for religious employers, are in opposition to their faith tenets.
  • Freedom of speech, as it relates to both pronoun usage and employees’ ability to express their beliefs about marriage, family, and human sexuality, is now called into question.
  • The standard of review by which courts judge claims related to sexual orientation and gender identity discrimination could be upgraded to a stricter standard of review, like that used for sex discrimination.

Sadly, the Court has yet again usurped congressional power to achieve a desired policy goal which Congress has repeatedly refused to implement, and which is detrimental to society. 

With the Court’s invitation for litigation, the American Civil Liberties Union expects hundreds of cases to be filed.

Now, we wait to see how this will play out in future litigation and how Congress will respond to this judicial assault upon its constitutional prerogatives.

Mary Beth Waddell is Senior Legislative Assistant at Family Research Council. Peter Sprigg is Senior Fellow for Policy Studies at Family Research Council.

The Trump Administration Is About to Do the Right Thing on Religious Freedom — Again

by Travis Weber, J.D., LL.M. , Mary Beth Waddell, J.D.

May 22, 2020

The Department of Health and Human Services (HHS) is about to finalize a rule it proposed last year to ensure that religious freedom and conscience are protected, the medical profession is not politicized, and patient care is prioritized. We urge this rule’s swift finalization.

This rule is great news for patients and the health care community alike. In 2016, under the Obama administration, HHS issued regulations on Section 1557 of the Patient Protection and Affordable Care Act defining “sex” in the context of “sex discrimination” to incorporate “gender identity” and “the termination of pregnancy”. Health care institutions sued, contending that the heavy hand of government was forcing them to violate their conscience and threatening their ability to operate. Understanding that HHS had exceeded its authority, a federal judge issued an injunction to prevent the Obama administration rule from taking effect.

Now, President Trump plans to clean up this mess, and protect religious freedom, for our caregiving institutions nationwide. This policy change will enable the medical community to fulfill the Hippocratic oath, while protecting the convictions of those in that community who want to hold to their religious beliefs and consciences about the biological understanding of sex.

President Trump’s proposed rule is also pro-life, and will ensure that the pro-life convictions of medical professionals will be honored. The inclusion of “termination of pregnancy” in the Obama administration rule could be read to require the provision of, and coverage or referral for, abortion. This could then lead to federal financial assistance being conditioned on the promotion and performance of acts that devalue the sanctity of human life. Thus, removing this language is important to ensuring that federal laws protecting the right of healthcare workers not to provide or refer for abortion will be upheld. 

We applaud HHS for standing with science and religious liberty to ensure that the medical community is free of political chains and can simply focus on providing the best possible care to their patients according to the best medical science.

The finalization of this rule is a high priority for religious freedom, and very important to protecting the faith of many throughout our country.

It should be finalized promptly, so that those with long-running conscience and religious freedom concerns in this area can finally put them to rest.

Speaker Pelosi’s Partisan Coronavirus Relief Bill Attacks Life and Family

by Connor Semelsberger, MPP , Mary Beth Waddell, J.D.

May 19, 2020

Partisan politics are at play again. Last week, House Democrats passed the Heroes Act (H.R. 6800), a coronavirus relief bill that purports to help the people risking their lives on the front lines of the coronavirus, but in reality disregards vulnerable lives by funding abortion providers and deconstructs the idea of family.

The bill passed by a margin of 208-199 with one Republican supporting and 14 Democrats opposing. While it is unlikely to move in the Republican-controlled Senate, it is important to highlight how congressional Democrats are seeking to work against human life and the family during this pandemic.

In summary, the Heroes Act:

Attacks Longstanding Pro-life Policies

  • It creates a new “Heroes Fund” to provide an additional $13 per hour for essential workers in addition to their regular wages. Helping frontline workers who have put their lives at risk to battle the coronavirus is a good idea in principle; however, the bill’s definition of essential work includes any work conducted at outpatient clinics without any restrictions on those working at abortion clinics. It is disheartening enough that some liberal states have deemed abortion as an essential service, but pro-abortion members of Congress providing bonus pay for abortion clinic workers—while millions of Americans remain unemployed—takes abortion extremism to a whole new level.
  • Appropriates nearly $1 trillion in funds to state and local governments so they can continue conducting tests, providing essential equipment, and treating patients suffering from coronavirus. There is bipartisan support for such funding. However, the funding proposed in the Heroes Act has very limited restrictions on usage. This means liberal states like California and New York can use the federal funds to cover budget shortfalls they created by funding Planned Parenthood and other abortion providers. Just a few months before the coronavirus pandemic hit the U.S, the Illinois legislature appropriated millions of dollars for abortion facilities that provide family planning services.
  • Provides several tax subsidies for employers that can be used to pay for health plans that cover abortion. In particular, it would provide a full subsidy for COBRA health premiums, a current program which allows the recently unemployed to remain on an employer health care plan. This subsidy would violate the principles of the Hyde Amendment by directly subsidizing employer health care plans that cover abortion. 
  • Makes substantive changes to the Paycheck Protection Program (PPP). The PPP was designed to help small businesses and nonprofits seek immediate financial relief, and many churches and religious nonprofits have been able to access the program. Large nonprofits that perform abortions are currently ineligible for the PPP because of the 500-employee limit. Instead of expanding the program to include larger charitable organizations, House Democrats prioritized making an exception for abortion providers.

Undermines Marriage and Family

  • The bill deconstructs the idea of family with the same language that some had attempted to insert into the paid family and sick leave program in the Phase 2 coronavirus relief bill. While the language in this bill doesn’t include “domestic partnership” in a definition of “spouse,” it uses multiple definitions to try and achieve the same effect. The bill amends paid leave requirements to include paid sick leave for family members including “domestic partners.” This greatly waters down the significance of the family structure and renders the word “family” virtually meaningless.
  • Redefines “sex” in the context of sex discrimination to include sexual orientation, gender identity, and medical conditions related to pregnancy. This is the same language that appeared in the infamous Equality Act the House passed last year, which would have redefined civil rights laws in a manner inconsistent with biological realities and forced organizations to provide abortions. The language would apply to this bill and the other relief bills that have already become law, such as the Cares Act.
  • Establish diversity and outreach programs that specifically prioritize gender and sexual minorities. Further, the bill would create a designated suicide hotline that politicizes the meaning of sex. An excessive focus on sexual minority status is misplaced, given the existence of other high-risk groups and risk factors such as underlying mental illness.

Additional Progressive Priorities

Partisan policies have no place in legislation intended to address a pandemic. In addition to the aforementioned provisions that seek to undermine the sanctity of human life and the family, the Heroes Act includes:

  • Provisions propping up the notion of hate crimes, which FRC has consistently opposed because they undercut freedom of expression. Hate crimes are essentially “thought” crimes, and hate crime laws punish the accused for a perceived prejudice against the victim. This is reinforced by the bill’s addition of “alternate sentencing” to existing hate crimes law, which will allow courts to order “educational classes” to correct the defendant’s alleged prejudice. Thoughts are not criminal; only actions are, and the First Amendment protects all expression, even that with which we disagree. Existing criminal law categories are sufficient to address the interests of justice without straying into the dangerous territory of trying to eradicate the thoughts of our citizens. 
  • Language taken straight out of the SAFE Banking Act, a policy that would legitimize the marijuana industry by granting them access to capital and other banking services. As Senate Majority Leader Mitch McConnell said in a statement, “The word ‘cannabis’ appears in this bill 68 times. More times than the word ‘job’ and four times as many as the word ‘hire.’” Reducing current federal restrictions on marijuana would, among other things, give money laundering access to international drug cartels who are already using marijuana legalization as a cover, and would radically increase investment in the marijuana industry.
  • A second round of stimulus checks with a change to allow illegal immigrants without a social security number to be eligible. Republicans led an effort to amend this policy, but came up just short of amending this language before final passage.
  • An extension of the $600 per week unemployment insurance increase through January 2021, allowing some individuals to continue collecting more money on unemployment than they would working. This perverse incentive to work was raised by Senate Republicans during the debate of the CARES Act, and now as the economy starts to open could have even more lasting impacts on the value and dignity of work.
  • Long-term changes that reshape the way elections are conducted in a way that favors Democrat candidates. This bill would require 15 days of early voting for federal elections and absentee vote by mail ballots for all voters. It would also mandate that all voters can register the same day, both in-person and online. Not long ago, many Democrats were highly concerned about fraud and interference in the 2016 election. Now, they are seeking to mandate mail-in ballots and online registration, policies that can put election security at risk.

Unfortunately, the present national health emergency has not united Congress to help our country. Congressional Democrats have shown time and time again that they would rather score political points than help our country through this pandemic. As Congress continues to consider what steps may be necessary to provide additional relief to the health care system and economy, FRC will remain vigilant in protecting faith, family, and freedom.

Do No Harm Act” Threatens Our First Freedom

by Luke Isbell , Mary Beth Waddell, J.D.

June 27, 2019

Yesterday, the House Committee of Education and Labor held a hearing on the Do No Harm Act. While this bill purports to prevent harm, it would actually significantly harm religious believers by gutting our most prominent religious liberty statute, the Religious Freedom Restoration Act (RFRA).

Pitched as an act that would prevent abuse of religious freedom, and “restore” RFRA’s “original intent,” the bill would actually treat religious believers differently based on the circumstances of their claim and dictate when RFRA can be applied. Instead of all individuals having access to RFRA as a defense against a government burden on their First Amendment right to freely exercise their religion, the Do No Harm Act explicitly excludes some individuals from RFRA’s protections.

A Threat to a Fair Hearing

At the hearing, Representative Mike Johnson (R-La.), a constitutional lawyer with nearly 20 years of experience working on religious freedom, testified how religious freedom is “often referred to as our first freedom.” The Founders of the United States recognized that everyone should be able to live their lives according to their deeply held beliefs, and never be forced by the government to act in a way contrary to their beliefs. The protection and flourishing of religious liberty was understood to be so vital to the foundation of our nation that it was written as the First Amendment to the Constitution: “Congress shall make no law establishing religion OR prohibiting the free exercise thereof.” As apparent from this hearing, those on the Left seem to misunderstand the meaning of this constitutional right and the protections that flow from it.

The sentiments expressed by Rep. Johnson used to be understood by both sides of the aisle, a point that he made at this week’s hearing. They certainly were back in 1993 when RFRA was passed unanimously by the House, 97-3 by the Senate, and then signed into law by President Bill Clinton. RFRA promises that a fair hearing will be given to all individuals whose religious freedom has been infringed by the government. That’s it. It does not favor any one ideology over the other or predetermine an outcome. As Matthew Sharp, Senior Counsel at Alliance Defending Freedom, testified at the hearing, even when RFRA is used the government often wins.

Disagreement is Not Discrimination

Many proponents of the Do No Harm Act claim it is necessary because discrimination is happening in the name of religious liberty under RFRA. However, there is a big gap between acting on personal convictions and discriminating, or forcing others to believe the same as you. Disagreement is not discrimination. RFRA does not allow individuals to force others to believe the same as them. That is not religious freedom, and RFRA does not protect it.

The Do No Harm Act would be the cause of harm and discrimination, not the alleviator of it. The Little Sisters of the Poor used RFRA in their fight against the government trying to force them to provide contraceptives, but they would no longer be able to bring a RFRA claim under the Do No Harm Act.

The Displacement of Children in Need

A few Democrats made a fuss about the Department of Health and Human Services (HHS) using RFRA to grant Miracle Hill Ministries, a faith-based adoption and foster care agency in South Carolina, a waiver from Obama-era regulations still in effect that would force them to violate their conscience or stop serving children in need. Democrats bemoaned the granting of this waiver in the hearing and claimed that such waivers are harmful to the children in need of loving homes.

In fact, the opposite is true. When Catholic Charities was shut down in Illinois, nearly 3,000 children were displaced. When Philadelphia cut its contracts with two of their 30 partner agencies because they were faith-based, foster parents (one of whom was a “foster parent of the year”) were left with empty homes and siblings faced the possibility of not being placed together. Ironically, all this occurred after the city put out an urgent call for hundreds of new foster homes. Birth moms have also expressed their desire to use faith-based agencies to help them navigate the darkest time in their life and to place their child in a home of a particular faith. They deserve that option, but would see it shut down if proponents of the Do No Harm Act get their way.

In Michigan, St. Vincent Catholic Charities is one of the most successful adoption agencies in the state, performing 90 percent better than the other agencies in its area. However, when Michigan attempted to cut ties with the religious organization (which would have severe negative impacts as noted above), the organization was able to team with Becket Law to argue that their rights were being violated. Discovery in the case found that they were clearly being targeted because they were faith-based. Children in their care had been adopted by couples identifying as lesbian, gay, bisexual, or transgender (LGBT) through other agencies in the state. The same-sex couple who sued also lived closer to three or four other agencies they could have worked with. Yet the Do No Harm Act would strip Catholic Charities of the ability to even have their claim heard. This case is ongoing.

A Threat to the Foundation of Peaceful Co-existence

Religious liberty and non-discrimination are not at odds—rather, they promote each other by allowing people to freely act on the values that are most important to them.

Religious freedom was a founding principle of our nation, and it led to the ability for people of all faiths to live together peacefully—because the government never forced them to act against their personal beliefs. RFRA is the door that ensures people will always have recourse in court if the government violates this freedom, yet the Do No Harm Act would shut that door to many.

Mary Beth Waddell is the Senior Legislative Assistant at Family Research Council. Luke Isbell is an intern at Family Research Council.

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