Asking for conscience clarity

Rabbi David Saperstein and Nathan Diament are among a diverse coalition of faith community leaders who called on President Obama to provide more clarity to federal law providing religious conscience protections for health care workers.

Diament, public policy director of the Orthodox Union, and Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism, were part of a group of eight leaders — of whom five, including Diament and Saperstein, serve on Obama’s Advisory Council on Faith-Based and Neighborhood Partnerships — which submitted a comment on the effort by the Obama administration to rescind a "conscience rule" enacted in the waning days of the Bush administration. The signatories to the document used their institutional affiliations but said they were not speaking on behalf of their organizations.

The members of the group said they had different opinions on the actual rule, which cuts off federal funding for governments, hospitals and others if they do not allow doctors, nurses or other health care workers to opt out of participating in medical procedure that they believe violates their beliefs. But they emphasized that federal law already provides some conscience protections for healthcare workers, most notably in the area of abortion, and that conscience protections should not be looked at as a "zero-sum game."

The comment then recommended that if the rule is rescinded, the administration should clarify what is covered under current law and understake educational efforts to explain current statutes. It also urges the administration to uphold the president’s promise to strengthen Title VII of the Civil Rights Act of 1964 by undertaking efforts to pass legislation protecting religious freedom in the workplace.

The others who signed the document were Pastor Joel Hunter, senior pastor at the evangelical Northland Church in Florida; Pepperdine Law School professor Douglas Kmiec; Richard Land of the Southern Baptist Convention; Sojourners president Rev. Jim Wallis; Melissa Rogers of the Wake Forest Divinity School; and Robin Fretwell-Wilson of the Washington & Lee University School of Law.

You can read the entire document here.

Meanwhile, the O.U. joined the American Jewish Committee, American Jewish Congress, the Anti-Defamation League, B’nai B’rith International, Agudath Israel of America and Baptist, Seventh-Day Adventists, Muslim and Sikh groups to submit a separate comment also expressing the importance of workplace religious freedom legislation.

"We have sought, and continue to seek, an amendment to Title VII that will strengthen the level of protection for employees, including those seeking accommodation of a religious objection to a particular work duty," wrote the coalition. "The amendment will do this by raising the burden an employer must experience before being relieved of the statutory duty to accommodate. Even then, a balancing test will remain in place that spells out, and takes into account, the legitimate interests of employers and third parties."

You can read that entire comment after the jump.

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April 7, 2009

Office of Public Health and Science

Department of Health and Human Services

Attention: Rescission Proposal Comments

Hubert H. Humphrey Building

200 Independence Avenue, SW

Room 716G

Washington, DC 20201

Re: 45 CFR part 88, RIN 0991-AB49 – Rescission Proposal; Proposed Rule on “Rescission of the Regulation Entitled ‘Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law’”, as published at 74 Fed. Reg. 10207 (March 10, 2009)

Dear Sir or Madam:

We represent a diverse group of religious and civil rights organizations with divergent views on the Final Rule promulgated at the end of last year by the U.S. Department of Health and Human Services at 73 Fed. Reg. 78072 (Dec. 19, 2008) (the “Rule”), and the agency’s more recent proposal to rescind that Rule, 74 Fed. Reg. 10207 (March 10, 2009). Notwithstanding those differences, we join together today to express our disagreement with the claim some have made that the protection afforded under the “religious accommodation” requirement of Title VII of the Civil Rights Act of 19641 is adequate to safeguard individuals who require accommodation in the workplace of religious belief and practice from religious discrimination.

By virtue of court decisions interpreting Title VII’s religious accommodation provisions, those safeguards have too often proven anemic in protecting religious belief and practice in the workplace. In Trans World Airlines v. Hardison, 432 U.S. 63 (1977), the Supreme Court narrowly interpreted Title VII’s religious accommodation requirement in holding that an employer need not provide such an accommodation to an employee if it would impose more than a de minimis burden on the employer. That extremely low standard, as well as other judicial interpretations of the religious accommodation requirement, often make it exceedingly and unnecessarily difficult for employees to prevail in workplace religious accommodation cases.

For this reason, we have sought, and continue to seek, an amendment to Title VII that will strengthen the level of protection for employees, including those seeking accommodation of a religious objection to a particular work duty. The amendment will do this by raising the burden
an employer must experience before being relieved of the statutory duty to accommodate. Even then, a balancing test will remain in place that spells out, and takes into account, the legitimate interests of employers and third parties.

Toward that end, we are gratified that President Obama, during his election campaign, recognized the need for enhancing the religious accommodation requirement: “I believe firmly that employers have an obligation to reasonably accommodate their employees’ religious practices. I would support carefully drafted legislation that strengthens Title VII of the Civil Rights Act of 1964 to further protect religious freedom in the workplace.”2

We appreciate the opportunity to comment.

Sincerely,

Agudath Israel of America

American Jewish Committee

American Jewish Congress

Anti-Defamation League

Baptist Joint Committee for Religious Liberty

B’nai B’rith International

Center for Islamic Pluralism

General Conference of Seventh-day Adventists

Sikh American Legal Defense and Education Fund

Sikh Council on Religion and Education

Union of Orthodox Jewish Congregations of America