Conflicts Loom On Religious Freedom Issues in the Workplace

The Nebraska Unicameral recently killed a proposed law that would have given protected workplace status to gay, lesbian and transgendered citizens. The legislation was defeated, in large part, by a coalition of conservative religious groups who opposed the law on moral grounds. That bill will likely re-surface in the next session, and will be another episode in the series of religion-based legislative battles sweeping the country.

I am a Co-Chairman of an ABA Sub-Committee that examines State law developments affecting the employment relationship. We recently examined the increase in States that have enacted a Religious Freedom Restoration Act law. Courts likely will soon be determining which law controls: those guaranteeing non-discrimination on the basis of religion v. the RFRA laws.

The Nebraska Constitution, Article 1-4, reads in pertinent part as follows:

“All persons have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No person shall be compelled to attend, erect or support any place of worship against his consent, and no preference shall be given by law to any religious society, nor shall any interference with the rights of conscience be permitted.   . . . . it shall be the duty of the Legislature to pass suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of public worship, and to encourage schools and the means of instruction.”

There are no Nebraska cases that have interpreted this clause as it applies to the workplace. However, I think that will change in the not-too-distant future.

There is a time-worn tension between the proponents of religious freedom and the objectors of religious overreach. The passage of the Patient Protection and Affordable Care Act in 2010, with its mandate for cost-free contraception coverage for employees, and the Obergefell decision finding a constitutional right to same-sex marriage, served only to heighten the tension.

The United States Supreme Court’s 2014 decision in Burwell v. Hobby Lobby Stores, Inc., also received much attention. The case involved many of the most highly debated issues: the scope of corporate power, religious freedoms, national healthcare, contraception, and abortion.

Prior to 2010, only 14 States had enacted RFRA legislation. But within the next five years, six more States followed. Similar laws were debated in 15 additional States in the 2015 legislative session. While some statutes passed more or less under the radar, by 2015, religious freedom bills passing through State Legislatures were receiving tremendous local and national attention; most notably in Indiana and Arkansas.

Further, States have also passed legislation designed to protect an undefined zone of moral conscience for health care providers.   Illinois, Idaho, Mississippi, Washington, and others have (and have had for many years) existing legislation designed to ensure that medical personnel are free to act in accord with their personal consciences by refusing to participate in providing certain health care services, and to protect them from discrimination in employment for making such choices.

Many of these State statutes appear to have their origins in the political battles over abortion rights and in the wake of the Supreme Court’s decision in Planned Parenthood v. Casey, 505 U.S. 833 (1992). Yet, by their language, these statutes are not confined to participation in abortions or other reproductive health care services. They permit, generally, a medical provider to refuse to perform “any health care service” that the person believes violates his/her “conscience.” This focus on personal moral conscience, rather than religion, has the potential to broaden their scope even further.

While some states require the employee to provide advance written notice of the objection, most do not. Some States require the employer to reasonably accommodate the moral objection, unless it can demonstrate an undue hardship. Most appear to make the employees’s choice absolute, except in a life-threatening emergency for the patient. Further, most of the statutes make explicit the protection of the employee against any form of discrimination (privileges, licensing, hiring, discipline, termination, etc.) for a conscience refusal to participate in any form of health care service.

There have been few reported cases involving either the State RFRA statues or the health care conscience arts and their direct impact on the employment relationship. It is not difficult to foresee the ways in which the desire to find a space for religious conviction in the workplace and while still protecting equal employment opportunities could come into conflict.

For example, assume a business owner refuses to promote a gay married male, based on the fact that his religion considers same-sex marriage to be clearly contrary to Bible teachings. Which one wins, his rights under a RFRA, or the employee’s rights under the Obergefell decision? Time will tell whether religious freedoms will impact the policies of equal opportunity in the workplace.

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