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History Is On Our Side: Why the Federal Contraception Rule is Constitutional

Brigitte Amiri,
Deputy Director,
ACLU Reproductive Freedom Project
Sarah Lipton-Lubet,
ACLU Washington Legislative Office
Anthony Rothert,
Legal Director,
ACLU of Missouri
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August 3, 2012

History has a way of repeating itself. Almost five decades ago a court in South Carolina considered a claim that a restaurant owner could refuse to serve African-American customers because integration of the races was against his religious beliefs. The court rejected that claim, and courts went on to do the same when faced with other, similar claims that religion can be used to discriminate.

Relying on this history, today the ACLU and the ACLU of Eastern Missouri filed an amicus brief supporting the federal contraception rule, which requires employers to provide insurance coverage for contraception without a co-pay. The case, O’Brien Industrial Holdings v. Department of Health and Human Services, is yet another challenge by a secular business – this one a holding company for various mining and manufacturing ventures – attempting to argue that the contraception rule is a violation of religious liberty.

The contraception rule will provide access to health care services for millions of women. Access to contraception is crucial for women’s equal participation in society. Controlling whether and when to have children has had a direct effect on women’s ability to make their own paths in terms of their schooling, careers, their families. The contraception rule is also essential to eliminate the gender disparities in health costs: child-bearing women pay 68 percent more for out-of-pocket costs than men, in large part because of reproductive health needs. The contraception rule is therefore essential to gender equality on many levels.

While today’s controversy centers around access to contraception and eradicating gender discrimination, the claim that the business makes in today’s case – that religious objections should trump laws designed to promote equality – is not unique. A few examples:

• In 1966, three African-American customers brought a suit against Piggie Park restaurants, and their owner, Maurice Bessinger, for refusal to serve them. Bessinger argued that enforcement of the Civil Rights Act, which prohibits that type of discrimination, violated his religious freedom “since his religious beliefs compel[ed] him to oppose any integration of the races whatever.”
• In 1976, Roanoke Valley Christian Schools added a “head of household” supplement to their teachers’ salaries – which according to their beliefs meant married men, and not women. When sued under the Equal Pay Act, Roanoke Valley claimed a right to an exemption. According to the church pastor affiliated with the school, “[w]hen we turned to the Scriptures to determine head of household, by scriptural basis, we found that the Bible clearly teaches that the husband is the head of the house, head of the wife, head of the family.”
• In the 1980’s, Bob Jones University, a religiously-affiliated school in South Carolina, wanted an exemption from a rule denying tax-exempt status to schools that practice racial discrimination. The “sponsors of the University genuinely believe[d] that the Bible forbids interracial dating and marriage,” and it was school policy that students engaged in interracial relationships, or advocacy thereof, would be expelled.

Fortunately, in all of these cases, the court rejected the claim that religious beliefs can trump anti-discrimination laws. Even in the 1960’s, the court recognized that although a business owner has a constitutional right to express his religious beliefs, he does not have an absolute right to exercise such beliefs “in utter disregard” of the rights of others. The court in today’s case should follow history and what courts have long recognized: that religion is not a license to discriminate.

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