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 bold) 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.

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