As 2016 comes to an end, we’re looking back at the biggest religious freedom stories of the past year.
Donald Trump Elected President
It’s hard to think of a bigger political story in 2016 than that of Donald Trump and his running mate, Mike Pence, winning the presidential election. Though January 20 is still a few weeks away, the Trump-Pence campaign rhetoric and cabinet picks signal that the Trump administration will push legislation and policies that would allow religion to be used to harm others. For example, his pick for the Secretary of Health and Human Services, Rep. Tom Price (D-GA), cites “religious freedom” as the reason he wants to repeal the regulations that ensure that more than 55 million women have insurance coverage for contraception without out-of-pocket costs. In addition, Trump has said that he would sign the federal First Amendment Defense Act (FADA), a bill that lawmakers are eager to reintroduce the bill in 2017. FADA would allow private businesses, federal contractors and grantees, and even government employees to use their religious beliefs to justify discrimination. The bill gives almost anyone the right to ignore laws that conflict with their beliefs that marriage should be limited to a man and a woman and that sex should only take place within such a marriage, placing LGBTQ couples, women, and others at grave risk.
State Legislatures Introduce First Amendment Defense Acts
Like the federal First Amendment Defense Act, state FADAs seek to sanction discrimination allowing individuals and entities to ignore laws that conflict with their religious beliefs about marriage. Several state legislatures debated these bills in 2016, but the only one to become law was struck down by a U.S. District Court.
Georgia’s FADA faced overwhelming backlash, including from celebrities, business leaders, entertainment companies, Georgia sports franchises, and even The Mouse himself. After the Georgia General Assembly passed the bill, Governor Nathan Deal vetoed it, saying, “I do not think we have to discriminate against anyone to protect the faith based community in Georgia of which my family and I are a part of for all of our lives.”
This year, Missouri legislators attempted to amend the state constitution to allow businesses, taxpayer funded organizations, and individuals to ignore laws that conflict with their “sincere religious beliefs or practices concerning marriage between two persons of the same sex.” The constitutional amendment would have also nullified local civil rights ordinances that protect LGBTQ Missourians. In the Missouri Senate, 9 Senators fought back, filibustering for an astounding 39 hours, bringing state and national attention to the bill. Although the bill was ultimately adopted in the Senate, it lacked the votes to pass in a House committee. Like in Georgia, corporations and local business organizations opposed the provision. You can read our Storify coverage from the dramatic House committee vote here.
The Mississippi “religious freedom” bill similarly sought to sanction discrimination against LGBTQ couples in the name of religion. Unlike the FADAs in Georgia and Missouri, Mississippi’s HB 1523 landed on the governor’s desk and was signed into law. U.S. District Judge Carlton W. Reeves, however, barred the state from enforcing the law just hours before it went into effect. Governor Phil Bryant appealed the decision and now it’s up to the U.S. Court of Appeals for the Fifth Circuit to decide. Last week, Americans United joined an amicus brief to the Fifth Circuit opposing the law. Check back in 2017 for more updates.
ACA Contraception Insurance Accommodation Challenged
In Supreme Court
In 2016, the Supreme Court again considered a Free Exercise challenge to the Affordable Care Act’s contraception coverage regulations that require most insurance plans to cover contraception without out-of-pocket costs. In Zubik v. Burwell, several non-profit institutions challenged the regulation’s religious accommodation, which exempts them from providing their students and employees with insurance coverage for contraception. Under the accommodation, a religiously affiliated university or hospital, for example, needs only to state its objection in writing, and the government will arrange for a third party to pay for and provide the coverage instead. Remarkably, these organizations insisted that the mere act of requesting the accommodation violated their religious freedom. We filed a brief in the Supreme Court on behalf of 240 students, faculty, and staff at religiously affiliated universities, discussing the importance of providing contraceptive coverage to those who work or study at religiously affiliated institutions.
In May, the Supreme Court decided to send Zubik back down to the lower courts, leaving access to birth control at these religiously affiliated entities in limbo. Since then, the federal government asked for public input on the ACA contraception insurance accommodation, but the future of these accommodations remains to be seen as we transition into a new administration.
Lawmakers Use Religion As An Excuse To Discriminate In The National Defense Authorization Act (NDAA)
This year, legislators tried to sneak taxpayer-funded discrimination into the National Defense Authorization Act (NDAA). The Russell Amendment, a provision added to the bill by Rep. Steve Russell (R-OK), would have allowed religiously affiliated organizations to discriminate in hiring on the basis of religion with grant or contract money. The provision didn’t just apply to defense funds and projects, but to every contract and grant across the entire federal government. If passed, a faith-based organization could have taken taxpayer money to perform a social service for the public—like running the local homeless shelter or working with at-risk youth—and then only hired people who belong to the organization’s denomination or profess the same beliefs. Religiously affiliated hospitals and universities that get government grants or contracts could do the same. LGBTQ employees and women could have lost their jobs because of someone else’s religious beliefs.
We fought back. Forty-two U.S. senators and eight-nine U.S. Representatives joined us in calling on their colleagues to #RejectRussell in the NDAA. Americans United and our allies also delivered to Congress a petition opposing taxpayer-funded discrimination with over 342,000 signatures. Thanks to these efforts, Congress stripped the provision from the NDAA in December 2016.
Alabama Court of the Judiciary Suspends Chief Justice Roy Moore
Former Alabama Supreme Court Chief Justice Roy Moore, a perennial foe of church-state separation, made news again this year. After the Supreme Court’s 2015 marriage equality ruling, he instructed Alabama probate judges to cease issuing marriage licenses to same-sex couples. We fought him in court and won, securing a permanent injunction against Moore’s order. His actions, however, also earned him a number of ethic complaints, and though he fought them tooth-and-nail, justice prevailed the Alabama Court of the Judiciary removed Moore from the Supreme Court. It was a great victory for equality, but we may not have heard the last from Moore. He is currently appealing his suspension and may be considered as a replacement in the U.S. Senate if Senator Jeff Sessions (R-AL)is appointed Attorney General.
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From the legislatures to the courts, 2016 brought challenges— and victories— for Americans United and others who fight against using religion as an excuse to harm others. In 2017, we will continue to fight back, continue to stand for equality, fairness, and religious freedom, and continue to protect our neighbors.