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Rebuttal to ACLU Action Alert on WRFA
of March, 2005*
Recently, the ACLU issued an action alert entitled “Defend Civil
Rights and Health Services” laying out a series of assertions and
misrepresentations regarding the soon to be introduced “Workplace
Religious Freedom Act.” Here is the text of the ACLU’s assertions,
followed by responses (in italics) from the WRFA Coalition –
comprised of more than 45 religious organizations across the
spectrum of America’s faith communities.
The ACLU
Asserts: “The next time you go to the hospital, you should not
have to worry that a nurse might not treat you because it against
his religion to provide the service you need. You also should not
have to worry that police officers might not enforce certain laws
designed to protect you because to do so would offend their
religious beliefs.”
The WRFA
Coalition agrees. That’s why WRFA is a carefully crafted piece of
legislation that seeks to encourage employers to accommodate the
religious needs of their employees – but in a manner that ensures
third parties are not adversely affected. In the examples here,
there may be a reasonable accommodation of individual religious
conscience that could be afforded to a nurse or police officer,
but only if another nurse or officer is available to perform the
duties in his/her place.
The ACLU
Asserts: “Yet legislation soon to be introduced in the U.S. Senate
would greatly increase the chances of such scenarios actually
occurring. One of your Senators co-sponsored this legislation in
the last session of Congress; please act now to help ensure that
neither of your Senators co-sponsors the bill this year.”
WRFA is a
consensus proposal which enjoys broad bipartisan support in
Congress. Its lead sponsors in the U.S. Senate are Senators John
Kerry (D-MA) and Rick Santorum (R-PA); last year, WRFA (S.893) was
co-sponsored by more than 20 senators spanning the political
spectrum.
The ACLU
Asserts: “Many people came to America to flee religious
intolerance and our religious freedom and religious plurality are
one of the cornerstones of American society. Because of this
freedom, each of us has the right to practice -- or not practice
-- the religion of our choice. However, if you are police officer
or doctor, you should not be able to refuse to fulfill your duty
in a particular situation on religious grounds if it would result
in harm to someone else's civil rights or healthcare.”
The WRFA
Coalition agrees. That’s why WRFA explicitly provides that an
employee may not be given a religious accommodation if that would
result in either: (a) the employee not fulfilling the “essential
functions” of the job, or (b) the employer bearing a “significant
difficulty” – which harm to the rights or healthcare of a person
served by the employer would certainly be. Religious freedom is a
cornerstone of our society and that is why the law should
encourage the accommodation of individual religious conscience –
even when “politically incorrect” to some – so long as the
accommodation does not infringe upon the rights or well being of
other persons.
The ACLU
Asserts: “What religious exceptions have people tried to claim in
the past? A nurse employed in a maternity ward sued after she was
fired because she refused on religious grounds to scrub for an
emergency caesarian section and left a woman "standing in a pool
of blood" for 30 minutes. In another case, a police officer sued
after he was fired because he refused to guard an abortion clinic.
The courts rightly rejected these cases, but legislation expected
to be shortly introduced could give similar claims greater
protections.”
Yes, the
courts rejected these claims and WRFA would not alter that result.
Under WRFA, there would be no basis for a nurse not performing the
“essential function” of her job and assisting in an emergency
procedure; and there would be no basis for a police officer to
refuse to guard an abortion clinic if there were no other officer
available to fulfill that duty.
The ACLU
Asserts: “There are a lot of good reasons for Congress to
strengthen the rights of employees to take time off for religious
observances or to wear religious clothing or a beard. But the
Workplace Religious Freedom Act is so sloppily drafted that it
could cause a wide range of harm to coworkers, patients and
customers.”
WRFA is a
carefully crafted and complex piece of legislation produced by the
collaboration over many years of bipartisan members of congress,
attorneys and civil rights activists. It has been the subject of a
congressional hearing and scholarly study.
The ACLU
Asserts: ”The Workplace Religious Freedom Act could gut employer's
nondiscrimination policies that go beyond the minimum that federal
law requires. Many employers have their own civil rights policies
and employee training that provide more protection than the law
minimally requires against racial, sexual and religious harassment
-- and include categories such as sexual orientation and marital
status. Employees could use this bill to claim that their religion
requires them to flout these civil rights policies. It could also
bolster the claims of employees that they do not have to comply
with state and local civil rights laws that protect against sexual
orientation or marital status discrimination.”
Note that
every claim in this distortion is qualified and tentative. Of
course claimants could assert anything; the test of a legislative
proposal is what it is intended to do and how it will be applied
by the courts. The broad coalition of national organizations which
supports WRFA includes staunch supporters of civil rights who
reject these speculative assertions.
The ACLU
Asserts: “This bill would harm the health and safety of people
seeking health care. The legislation would strengthen the hand of
police officers who want to pick and choose who they will protect,
and emergency health care workers and mental health counselors who
could abandon patients because their care conflicts with the
worker's religious beliefs.”
WRFA will
not allow any employee to be accommodated if such accommodation
would prevent the employer from delivering a service it is in
business to deliver or prevent the employee from fulfilling the
essential functions of his/her job. A police officer may not
individually choose what duties s/he will perform; a health care
worker may not refuse to assist in an emergency procedure; and a
mental health counselor may not leave a patient without recourse.
The ACLU
Asserts: “This legislation would make it significantly harder to
get health or safety information or services. Employees would be
even more likely to claim that their religion prohibits them from
providing contraceptive care or HIV prevention counseling -- even
if the employer has no one else to provide those services.”
If the
employer has no one else to provide a particular service, WRFA
will not provide a basis for an employee to refuse to provide it.
Period.
Do not accept the distortions of the WRFA critics at face value.
Religious
liberty is too important an issue to demagogue. WRFA is carefully
crafted, broadly supported and consistent with fundamental
American values.
*
URL:
http://www.aclu.org/ReligiousLiberty/ReligiousLiberty.cfm?ID=17680&c=142
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