First Amendment Rights of Employers Continue to Impact Employment Litigation

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A number of secular, for profit corporations are owned and operated by members of religious faiths whose tenants and beliefs are inapposite to the mandates of the Affordable Health Care Act. This issue of conscience vs. legality will continue to reverberate for years to come. The 7th Circuit yesterday granted an injunction pending appeal regarding the contraceptive provisions of the Act in Grote v. Sebelius, (7th Cir. January 30, 2013)  The court noted that “[T]he Grote family contend that their faith forbids them to facilitate access to contraception by paying for it as the mandate requires them to do.” This burden of free exercise rights trigger the strict scrutiny test codified in the Religious Freedom Restoration Act, 42 U.S.C. § 20001bb. The government contends that the RFRA does not apply to private secular employers and thus does not trigger the strict scrutiny required under that Act. If higher courts uphold this application of RFRA to private secular employers, we can expect an impact larger than health care, but an examination of numerous federal statutes that arguably burden free exercise of private employers

About the Authors

Karen Kalzer

Ms. Kalzer practices employment and education law with an emphasis on defending complex litigation for communities of faith, non-profits, schools and private employers.

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