Burwell v. Hobby Lobby and the Civil Rights Act of 1964

Fifty years ago yesterday President Lyndon Johnson signed the landmark Civil Rights Act of 1964  into law, outlawing discrimination based on race, color, religion, sex, or national origin in voter registration, in employment, in schools, and by facilities that serve the public.   We should be dancing in the streets.

Instead of rejoicing, we are worried. We think all Americans should be worried. Why? Because just days before, on June 30, the United States Supreme Court’s majority decision in Burwell v. Hobby Lobby Store, Inc, potentially drove a truck through the protections of the 1964 law as well as any number of other federal laws, such as the Americans with Disabilities Act, the Pregnancy Discrimination Act, and the Age Discrimination Act.

Right now, the Hobby Lobby decision does substantial damage to the health of women and girls who are employees, spouses, or dependent daughters of the over 14,000 employees of the three plaintiff businesses.  The Court held that the federal Religious Freedom Restoration Act (RFRA) of 1993 protects the free exercise of religion rights of the three for-profit, closely controlled corporations that brought the lawsuits and that the businesses do not have to comply with the federal law and regulations requiring employer group health plans to cover the 20 contraceptive methods approved by the Food and Drug Administration as preventive services without cost to the patient.  The companies objected to covering four of those 20 methods in their health plans, claiming those four may interfere with a fertilized egg’s attaching to the uterus and the corporations’ owners have sincerely held religious beliefs that life begins at conception.    With the Court’s decision, thousands of women who work at these companies or who are the company-insured wives or daughters of company employees will have to pay 100% of the cost if they need one of the four excluded contraceptives.   Many will not have the funds to pay these costs and will go without or use second or third choice contraceptive methods which may not be the optimal medical choice. (NOTE: Extending RFRA’s protections to for-profit corporations was a huge leap that the majority of the Court was willing to take; This “startling breadth” is discussed by Justice Ginsberg in her dissent.)

In the future, closely held for-profit corporations and perhaps all for-profit corporations that can claim they have sincerely held religious beliefs can demand to opt out of federal laws they judge incompatible with their beliefs. Hence our worry. The majority decision tries to tell us this is not a big deal, that the decision is only about contraceptive health care coverage. We can only say “Really?” Since when do American courts make decisions whose holdings are not used by other litigants to support their positions in future, not identical cases?   

It does not take much imagination to come up with claims companies might make in the name of their sincerely held religious beliefs that would strip employees and customers of rights protected by the laws of the United States. Without pointing fingers at specific religions, we’ll just say that in the past, and sometimes into the present, main line religions have claimed that slavery was okay;  that interracial marriage was sinful; that a woman’s place was in the home not in the workplace; that unmarried women should not be sexually active and should be punished if they are; that gays and lesbians are sinners; and that a long list of well-established medical procedures (vaccinations, anesthesia, for example) are against their religious tenets.    In the present day there are serious disagreements among established religions over many issues and even more disagreements among smaller groups and individuals—but all have the “sincerely held religious beliefs” that the Hobby Lobby majority opinion potentially allows to trump third parties federally protected established rights. The result could be that for-profit corporations claiming these beliefs could refuse to employ people, fire people, turn away customers, and otherwise not follow generally applicable federal laws because following them would violate their beliefs. 

The Hobby Lobby decision is slightly over 72 hours old. Already, there is much commentary and speculation about it. We suggest you look at the Center for American Progress’ thoughtful historical and legal analysis, A Blueprint for Reclaiming Religious Liberty Post-Hobby Lobbyfor a better understanding of how we got to this point and how we can move forward, undo Hobby Lobby’s damage, and continue to foster the free exercise of religion.

 

 

The New Jim Crow: Honoring the Civil Rights of Those Who Have Paid Their Debt to Society

Thanks to the blood, sweat and tears of our ancestors, the immoral institution of slavery ended over 150 years ago. But the vestiges of slavery—prejudice and discrimination against people of color—remain woven into the fabric of American society.

Race discrimination continued under Jim and Jane Crow laws and the “separate but equal” legal doctrine. Thankfully, heroes of all ages and backgrounds risked everything to eradicate those immoral laws and practices so that liberty and justice could truly be available to all. As a result of their sacrifices, the Civil Rights Act of 1964 was passed and enacted, 50 years ago today on July 2, 1964, and Jim and Jane Crow laws and practices began to fade into the recesses of American history just as slavery did over a hundred years prior.

As these laws were repealed and overturned, new ways to systemically oppress people of color emerged–“new Jim Crow.” The ‘new Jim Crow’ refers to the disproportionate, mass incarceration of minorities, and the subsequent legal discrimination these men and women endure because of the resulting criminal record.

Depriving individuals of their freedom is a significant component of the criminal justice system. Depriving those same individuals of freedom after they complete their sentences should not be. Unfortunately, more than 65 million men and women throughout the nation with criminal records, a disproportionate number of whom are people of color, are facing just that.

The vast majority of employers will not hire men and women with a conviction of any kind. Moreover, people with convictions face significant challenges accessing affordable housing, and a significant number of landlords are not likely to rent to someone with a criminal record. With no meaningful access to jobs or housing, how can these people, who have paid their debts to society, be truly free?

These deprivations certainly have devastating effects on the individuals affected, but they also have a deleterious effect on these individuals’ elderly parents, children, and loved ones—for life. That is immoral.

Thankfully, members of the Illinois General Assembly (on both sides of the aisle) recongnize that. Recently, the General Assembly voted to pass two bills, HB 2378 and HB 5701 (or the Job Opportunities for Qualified Applicants Act), both introduced by Representative Rita Mayfield, that will make it easier for millions of Illinois men and women with criminal records to truly have their freedom restored. Now, it is our hope that Illinois Governor, Patrick Quinn, uses his power to sign these bills into law so that this most recent incarnation of these immoral laws and practices can be addressed. This represents an opportunity for the men and women who have turned their lives around to take care of themselves and their families. The signing of these bills would also make Illinois a leader as it relates to respecting the rights of all individuals and set a standard that we can all hope other states will emulate.

Specifically, HB 5701, or the Job Opportunities for Qualified Applicants Act (JOQAA),will improve the hiring process for over 300,000 employers and open doors for more than a million qualified people with criminal records in Illinois. Under the JOQAA, employers will be tasked with first determining whether applicants are qualified for a job and offering them an interview or the job before inquiring into the applicant’s criminal history in any form. This will allow men and women who have worked hard to become qualified for positions an opportunity to access the job opportunities they’ve earned.

The other bill, HB 2378, will give more than a quarter million men and women in Illinois who have minor, older, low-level offenses (misdemeanors) an opportunity to petition the court to limit who can look at those old convictions (a process called sealing). This legislation will help ensure that hard-working individuals with old, minor convictions are not unjustly denied jobs, housing, or other opportunities.

These bills are significant on their own. But they are even more significant today as we reflect on the lives lost in the fight for freedom throughout our history and the gains they’ve won as a result of their tireless, selfless fight for what’s right.

 

Racial Wealth Gap Is Wide and Growing

Wealth and assets are the building blocks of economic stability and mobility. Higher levels of wealth also benefit society as a whole. Unfortunately, wealth inequality in the United States is not only wide but growing — the wealthiest tenth of American households possess almost three-quarters of the country’s total net worth. The racial wealth gap is even worse. In less than a generation (from 1984 to 2007), the racial wealth gap has more than quadrupled, mostly as a result of rising white wealth. In terms of household net worth, for every dollar owned by a white household Latinos own twelve cents and African-American families own only ten cents.   In fact, the median net wealth of white households is 20 times that of black households and 18 times that of Hispanic households. These lopsided wealth ratios are the largest since the government began publishing this data a quarter century ago and roughly twice the size of the ratios that prevailed among these groups for the prior to the Great Recession.

Early evidence is that the great recession has already significantly increased the racial wealth gap because of catastrophic losses in wealth amongst minorities. A recent report by the Pew Research Center estimates that from 2005 to 2009 the racial wealth gap doubled – so that median white families currently have as much as 20 times the wealth of black families, and 18 times the wealth of Hispanic families. These racial wealth disparities will rise further as the after-effects of the Great Recession continue. Although the recession affected all U.S. households’ wealth, through unemployment, falling stock prices, and huge losses in home values, it affected minorities more. In fact, the foreclosure crisis has caused “the greatest loss of wealth for people of color in modern U.S. history.”

In order to understand the persistence of this discrepancy, one needs to examine the country’s historical and current discriminatory practices and policies. Even when characteristics such as income, education, and other demographics are equal, minorities continue to have less wealth than similarly situated whites. Historically, legal, or de jure, discrimination, both by the government and by private actors, increased the racial wealth gap and created the opportunity for whites to build assets at the expense of minorities. Additionally, and perhaps more importantly, other facially neutral policies of the U.S. government racialized wealth acquisition, including the government’s promotion of white land acquisition, home ownership, retirement, and education, without explicitly delineating opportunities along the lines of race. Today, although racial discrimination is no longer legal, de facto discrimination still exists in terms of government and social priorities, principles, social norms, and the actions of individuals. Housing discrimination, unequal educational systems, disparate treatment in the realm of criminal justice, and disparate employment opportunities all continue the current advantages that whites enjoy.

Two critical public policy strategies in reducing this gap is identifying and eradicating current discriminatory government policies, whether de jure or de facto, and assisting racial minorities in developing assets. As advocates in the asset building field have explained, “public policies have and continue to play a major role in creating and sustaining the racial wealth gap, and they must play a role in closing it.”

At the moment, however, the federal government is actually exacerbating the racial wealth gap.  Instead of subsidizing wealth creation mostly for the wealthy, the federal government must switch to supporting asset-building strategies for those who need it most. In 2009, the United States spent nearly $400 billion on asset building policies. These subsidies, however, overwhelmingly go to those who already have significant wealth. For example, those earning more than $160,000 received an average of $5,109 in tax breaks per taxpayer, while those earning less than $19,000 received an average of only $5 in tax credits in 2009. Shifting the government’s expenditures toward facilitating the asset-building of the poor and minorities would help alleviate the legacy of racial inequality and provide needed fiscal stimulus.

Multifaceted public policies and strategies to help individuals build their own assets are also needed. Specifically, we must identify strategies to (1) promote savings, (2) increase access to mainstream credit, and (3) improve and increase financial education. Only by acknowledging that the same social system that has, and continues, to foster the accumulation of private wealth for many whites while denying it to blacks and redirecting this focus will we, as a society, begin to decrease the wealth gap that has racially divided this country for centuries.

To read more about the causes of the racial wealth gap and asset building policy solutions to bridge this gap read the “Eliminating the Racial Wealth Gap: The Asset Perspective,” featured in the July-August 2011 issue of Clearinghouse Review.