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Turn on your radios!

The Supreme Court holds oral arguments tomorrow in Masterpiece Cakeshop. I will be live in-studio on 850 KOA Colorado’s Morning News, for a series of segments starting about 8:00 AM tomorrow morning discussing the case.

Trump Administration moves to expand religious — and moral — liberties of employers

President Trump campaigned, in part, on a promise to expand religious liberties. Following up on that promise, his Administration recently announced a series of new changes — changes that have already sparked litigation and are expected to be highly controversial. Many argue these changes are not only highly controversial but come at the expense of the rights of others.

On May 4, 2017, the President issued a Memorandum for all Executive Departments and Agencies in which he commanded all executive departments and agencies to “respect and protect” religious rights “to the greatest extent practicable and to the extent permitted by law.”  The only specific mandate his Memorandum highlighted (Sec. 3) was for Treasury to develop “conscience-based objections to the preventive-care mandate” under Obamacare. Likewise the Memorandum (Sec. 4) specifically commanded the Attorney General to issue occasional “Religious Liberty Guidance(s).”

Accordingly, it came as no surprise then when, on October 6, 2017, Attorney General Sessions issued his own Memorandum for all Executive Departments and Agencies articulating “twenty principles” designed to “guide administrative agencies and executive departments.”

Religious liberty is a foundational principle of enduring importance in America, enshrined in our Constitution and other sources of federal law. As James Madison explained in his Memorial and Remonstrance Against Religious Assessments, the free exercise of religion “is in its nature an unalienable right” because the duty owed to one’s Creator “is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.” Religious liberty is not merely a right to personal religious beliefs or even to worship in a sacred place. It also encompasses religious observance and practice. Except in the narrowest circumstances, no one should be forced to choose between living out his or her faith and complying with the law. Therefore, to the greatest extent practicable and permitted by law, religious observance and practice should be reasonably accommodated in all government activity, including employment, contracting, and programming. The following twenty principles should guide administrative agencies and executive departments in carrying out this task.

And, on the same day, Treasury issued two sets of interim final rules, that took effect immediately, authorizing employers to claim an exemption from Obamacare’s contraceptive mandate. The first (published in the 10/13/17 issue of the Federal Register at 21851) expands the current right of some entities and individuals to opt out of Obamacare’s contraceptive provisions on religious grounds. Now, religious objectors include churches and their auxiliaries, nonprofits, for-profit entities, other non-governmental employers and certain institutions of higher education. The for-profit employer provisions expand the Supreme Court’s holding in Hobby Lobby, which had authorized closely-held for-profits to opt out on religious grounds. Now for-profit employers that are not closely-held, even publicly-traded companies, may also be religious objectors.

Objectors need not be entities either. Individuals may object to participating in contraceptive coverage, though their objection cannot force a plan to drop such coverage for others.

The second set of interim rules outlines a process for moral objectors. The rules distinguish between “moral convictions” and “religious beliefs,” but, in a move sure to spark significant litigation, they do not define the term “moral.” Whatever that term might mean, it is clear from the language of the rule that a moral conviction need not be based in a religious belief.

Employers interested in utilizing either of these rules should know that lawsuits have already been filed. Further litigation is likely for years to come. And, as cautioned by the Society of Human Resources Management (SHRM), employees may well respond unfavorably. It is estimated that over 55-million women have access to contraceptive care as a result of Obamacare’s mandate. One commentator in SHRM’s article predicted, “There would be tremendous employee relations repercussions if employers took this benefit away, especially given how many women are in the workforce, and I’m sure some employers have done the math comparing maternity costs to the cost of providing contraception.”

Source: Treasury’s final interim rules: 2017-21851.pdf and 2017-21852.pdf