Sex, gender, and the familiar fight over religious exemptions

Nina Martin talks with a leading expert on the historic tension between civil rights and religious freedom

As conservatives grapple with the reality of gay marriage and the Supreme Court weighs whether companies should be forced to offer birth control to employees, it's very clear: The conflict between religious freedom and gender/sexual equality has become "the most important civil rights issue of this time."

So says Professor Katherine Franke, director of the Center for Gender and Sexuality Law at Columbia Law School and one of the driving forces behind the school's Public Rights/Private Conscience Project, a new initiative that seeks to shift the way people look at religious and secular values — and to bridge a divide that has come to seem insurmountable. Here, Franke talks with ProPublica's Sex and Gender reporter, Nina Martin.

NM: Let's start with why these two things — religious belief and civil rights — have come to seem so at odds.

KF: Part of the problem is the way we're currently framing the issue. On the one hand, we have the free exercise of religion, which is largely based in an appeal to revelation, to the truths of religious texts and religious doctrine. And on the other hand we have rights of equality and liberty, which are based in rational arguments — what are people entitled to as a matter of their humanity because we should all be treated equally under law. It’s an incommensurable confrontation between revelation and rationality. What ends up happening is that religion ends up like a trump card — you throw it down, it’s a conversation stopper, and we don’t know how to get out of this impasse. Law is really ill equipped for adjudicating between the claims of revelation and the claims of rationality.

NM: How did we get to this point?

KF: In part it's historical. Really since the late 19th century, when opponents of expanding notions of equality have lost in the public arena, their plan B has been to seek refuge in religion. We first saw it in racial equality cases, and more recently in the areas of reproductive rights and gay rights. When Congress or a state legislature or a federal court mandates the integration of public schools or upholds sex equality in the workplace or allows same-sex couples to marry, opponents of those efforts fall back on religion to say, "You can have those laws, they just don't apply to me."

NM: This year marks the 60th anniversary of Brown v. Board of Education and the 50th anniversary of the Civil Rights Act of 1964. What role did religious exceptions play in the fight over desegregation and civil rights?

KF: Right after the Supreme Court's decision in Brown, Strom Thurmond and other segregationist politicians issued the Southern Manifesto. Central to that strategy was the setting up of religious schools. Segregationists could opt out of the public school system and re-segregate their white children into religious schools. Some 168 private schools opened in Mississippi, Alabama, Florida, Louisiana, North Carolina, and South Carolina between 1964 and 1967. And for a time, the federal government was willing to grant tax-exempt status to those schools.

Then, in July 1970, the Nixon administration withdrew its support, stating that it would no longer allow tax exemptions for private schools unless they adopted racially nondiscriminatory admissions policies.

But many Southerners continued to insist that they be allowed to maintain private, religious, all-white schools on the grounds that God "separated mankind into various nations and races," and that such separation "should be preserved in the fear of the Lord." In 1983, in a case involving Bob Jones University, the Supreme Court once again decided that, no, this is not a legitimate assertion of religion, but a way to justify the ongoing maintenance of racial segregation, and that tax exemptions for religiously segregated schools are unconstitutional.

NM: A decade or so after Brown comes the women's movement. What kinds of religious exemptions were most common in those early battles?

KF: Just as women were becoming a larger percentage of the labor market, there were many employers that felt, well, that women shouldn't be working at all or that if they do, men should earn more since they were bringing home the family wage. These were traditional notions, sometimes based in religion, that the father was the head of the family. Then, with the advent of equal opportunity laws, employers found other reasons not to hire or promote women, often based on pregnancy. If you became pregnant when you were not married, you were immoral and a bad role model. So many women found themselves fired or unemployable.

Then at some point we decided, these policies and practices were a form of sex discrimination. Those arguments were vanquished from the workplace and from the public domain.

Now it's come full circle. When a school wants to fire an unmarried female teacher who gets pregnant or a business would rather not serve customers who are gay or lesbian , we're seeing is the refashioning of many old arguments in the name of religion. And the question we are struggling with is: Why is it legitimate to discriminate when wrapped in the cloak of religion, but it wouldn't have been acceptable if it were a view grounded in old-fashioned secular thinking about the proper roles for men and women or dislike some people have toward homosexuals?

NM: So much of the legal and public debate around abortion and contraception now focuses on religious values and objections. Was it always this way, going back to Roe v. Wade?

KF: The Supreme Court's jurisprudence around reproductive rights has evolved. In Justice Blackmun's majority opinion in Roe in 1973, he begins by noting that the issue is extremely complicated, that there are questions of morality and medical health and liberty and sex equality at stake, about which people disagree strongly. But he says, we are going to put aside the religious and moral debate. We are going to decide this issue as a matter between a woman and her doctor. This is a medical decision. It's for the woman to decide. The question is one to be resolved as a matter of rational decision-making, not of emotion or revelation.

Fast-forward 40 years to Justice Kennedy, who is the swing vote in many of the most contested cases now before the Supreme Court. Justice Kennedy is a Catholic, and if you read his decisions, much of the way he approaches questions of sexual justice, whether in the context of sexual orientation or reproductive rights, is moralistic in nature. The dignity of the individual is central to the way that he approaches questions of sexual rights.

NM: Give me an example.

KF: In his majority opinion in Lawrence v. Texas, [the 2003 case that decriminalized sodomy,] Justice Kennedy holds that what's at stake is the dignity of the human to choose the intimate relationships that give meaning to that person's life. He writes: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." The elaboration of our sexual selves is key, he notes, to this notion of liberty.

Contrast that with Bowers v. Hardwick [the 1986 case, decided before Kennedy joined the court, that upheld Georgia's sodomy laws]. In that ruling, dignity never came up. The Court instead found that there was no constitutional right to sodomy and that the states' criminalization of sex between two people of the same sex merely ratified long-standing societal condemnation of homosexuality. Indeed, Chief Justice Warren Burger was even more blunt, grounding his reasoning in a kind of historical disgust toward gay people, and noting that the English Reformation described sodomy as a "crime against nature," and an "offense of Ôdeeper malignity' than rape." The act was considered so heinous, he noted, that "the very mention of it was a Ôdisgrace to human nature.'"

Dignity, of course, is an idea deeply rooted in a particular religious tradition. The dignity — the sacredness — of the human derives from man's or woman's reflection of God himself.

NM: How does the issue of dignity feature in the most recent marriage cases?

KF: The [gay rights] lawyers who have been bringing these cases have chosen to focus on dignity rather centrally. The argument is that there's something humiliating about not being able to marry — that same-sex relationships are somehow not worthy of the blessings of marriage and the dignity that marriage confers.

It's a deeply moralistic argument, one that appeals to the likes of Justice Kennedy. In fact, this is the argument that appealed to him last year in the Windsor case [overturning the Defense of Marriage Act], where he wrote that the federal government's refusal to recognize marriages between same sex-couples demeans those couples and humiliates their children. And it's a very different argument from saying,Here we have two groups of people — heterosexuals and homosexuals — who are being treated dissimilarly, even though they are equally entitled to the benefits of the institution marriage or legal recognition through the granting of a marriage license.

NM: Is there are a problem, when talking about gay rights or reproductive rights, with focusing so much on dignity?

KF: Yeah, who could be opposed to dignity? But by prioritizing the dignity argument, there are unintended consequences. In the same-sex marriage context, what happens is that the shame that same-sex couples have suffered by virtue of their exclusion from the institution of marriage is shifted to people who cannot or choose not to marry. By arguing that "we" deserve the same dignity that married straight couples enjoy, it leaves unquestioned the shame-worthiness of couples who don't marry. There's a reinforcing of the shame and dishonor that those kinds of relationships already suffer from.

NM: Let's talk about the Hobby Lobby and Conestoga Wood contraception cases that are before the Supreme Court. Where do they fit into these trends you're describing?

KF: There are two norms that you see articulated in the Supreme Court's jurisprudence in the area of religious rights versus other rights. One is that race is special. Racial equality will almost always trump an assertion of free exercise of religion. This is a political consensus that was reached at some point in the 1970s.

But we haven't seen sex equality claims or reproductive justice claims gain the same level of social weight as have racial justice claims. When these rights come into conflict with religious claims, the religious claims have been taken more seriously and, in effect, trump other rights.

So one of the questions raised by the Hobby Lobby case is whether sex equality and reproductive justice are second-class rights. Should sexual-based justice or gender-based justice enjoy the same constitutional status as racial-based justice, or do they, well, enjoy a kind of second-class status when compared with racial equality or free exercise of religion?

NM: In 2011, the Supreme Court issued another very important ruling about religion in theHosanna-Tabor case. What's the significance of that decision and how does it relate to Hobby Lobby?

FK: I think the Hosanna-Tabor case, in a way, helps us see how radical the Hobby Lobby case really is. Hosanna-Tabor, in many respects, is a fairly traditional employment case under Title VII of the Civil Rights Act. Title VII, like many civil rights statutes, has a so-called ministerial exemption in terms of its reach for religious organizations. The question was whether a teacher who had been fired and was suing for discrimination under Title VII was a religious employee or a secular employee. The Court carved out a space where a religious employer could discriminate against any employee, even if their religion didn't require them to do so.

What's so radical about Hobby Lobby is the company's argument that a for-profit corporation can pick and choose which public norms it complies with on account of is owners' religious beliefs. Where would this argument stop? That's a very different thing than questioning whether anti-discrimination laws apply to a religious school, which is what the Hosanna-Tabor case raises.

NM: Where do you think this argument might lead? If the Supreme Court goes along?

KF: An employer could refuse to include HIV-related treatment in its health plan because HIV is God's vengeance for a sinful lifestyle, or refuse to cover alcohol or drug treatment because the use of alcohol or drugs is sinful, or refuse to cover blood transfusions because of the employer's commitment to the tenets of Christian Science, or refuse to employ women because it is God's plan that they stay home and care for their children, or fire an employee who marries a person of a different race because doing so offends the employer's religious beliefs.

You can see that this opens the door for a whole range of employment practices that violate public norms that would seem offensive if they weren't cloaked in religious principles.

NM: The example of Christian Scientists not funding blood transfusions would strike many people, I think, as wrong. Whereas a company that decides not to fund a certain type of birth control pill — many people accept that as being fair.

KF: I think the very fact that you ask that question is a testament to how successful the Religious Right has been in advancing the legitimacy of these religious exemptions. Twenty years ago, people would have thought that this was a completely implausible claim.

In many respects, the people or companies who claim these religious exemptions are asking that they be entitled to travel through life — both their private life and their public life — surrounded by a bubble that defines their faith. What does it mean to be a citizen if you can say, "My bubble basically inoculates me from having to answer to your law"? But in the United States, we say everyone is governed by the same law. To say "my religious law trumps your secular law" is a radical idea.




Sensex, Nifty readying for the next upmove: Wednesday closing report

Only a close below 6,480 on the Nifty will create a short-term bearishness

Among all the Asian indices, only the Indian indices ended in the green after a very volatile session. Although the benchmark was in the red minutes after opening, soon they recovered and traded mostly in the green for the rest of the session.


The Sensex opened at 21,793 and moved in the range of 21,768 and 21,966 and closed at 21,856 (up 30 points or 0.14%) while the Nifty opened at 6,498 and moved between 6,487 and 6,546 and closed at 6,517 (up 5 points or 0.08%). The NSE recorded a lower volume of 63.67 crore shares.


Among the other indices on the NSE, the top five gainers were Media (1.87%); FMCG (1.32%); Pharma (1.30%); Consumption (0.55%) and IT (0.50%) while the top five losers were PSU Bank (1.69%); PSE (0.84%); Infra (0.70%); Commodities (0.65%) and Auto (0.63%).


Of the 50 stocks on the Nifty, 19 ended in the green. The top five gainers were Sun Pharma (4.46%); Asian Paints (2.99%); ITC (2.32%); Hero MotoCorp (2.26%) and Coal India (1.94%). The top five losers were BHEL (2.77%); Tata Motors (2.37%); Hindalco (2.21%); PNB (2.15%) and IDFC (1.90%).


Of the 1,543 companies on the NSE, 665 closed in the green, 785 closed in the red while 93 closed flat.


Market awaited the industrial production data for January 2014 and inflation based on the combined consumer price index (CPI) for urban and rural India for February 2014 after market hours on Wednesday.


The Reserve Bank of India on Tuesday, 11 March 2014, said it will conduct a 21-day term repo variable rate auction for a notified amount of Rs50,000 crore on Friday, 14 March 2014, so as to address the anticipated tightening in liquidity conditions in the banking system on account of advance tax payments by corporates commencing mid-March 2014 and with a view to providing flexibility to the banking system in its liquidity management towards March-end 2014. The reversal will be on 4 April 2014, the central bank said. The auction will be conducted as per the revised guidelines issued on 13 February 2014, the RBI said.


US indices closed in then negative on Tuesday. The Labor Department said Tuesday that employers posted 3.9 million job openings in January, up 1.5% from December, a sign that hiring should remain steady in coming months. However, the increase fell short of what the market was expecting.


US wholesale inventories rose in January while wholesale sales fell, the Commerce Department reported on Tuesday. According to the National Federation of Independent Business, its small-business index dropped by more than expected, on concerns over sales, the economy and employment driving the downturn. All the Asian indices closed in the red. Nikkei 225 (2.59%) was the top loser. European indices were trading lower while US Futures too were trading marginally in the red.


The recovery in developed economies is on track although slowing activity in big emerging markets means global growth will be only moderate at best in the near term, the OECD said on Tuesday. They also said that exceptionally bad winter weather in North America and a sales tax hike in Japan are also disrupting the pace of recovery. Against that backdrop, the OECD urged the European Central Bank and the Bank of Japan to keep up their monetary stimulus, if not increase it, while it said the US Federal Reserve was right to begin winding down its bond-buying programme.


Insider trading in AstraZeneca Pharma?

One day before AstraZeneca Pharma announced delisting, its volumes spurted and share prices shot up by 9.13%. Could it be a case of insider trading?

On 3rd March AstraZeneca Pharma India Ltd, (AZ India) announced that its promoters AstraZeneca Pharmaceuticals AB (AZP AB) Sweden, will delist its shares. Because of this announcement, the share price shot up. But why was there a sudden increase in its turnover one day before the delisting announcement?


The sudden unusual rise in its turnover during three trading days seems fishy. The stock rose by Rs77.75 a day before its public announcement and just the day after, it fell by Rs107.40. Take a look at the following data:

The AstraZeneca Pharma India Prices on BSE










Total Turnover






















On 28th February, Friday, there was significant increase in its total turnover of its shares. The stock opened at Rs848 made day high at Rs955 and closed 9.16% up at Rs925.75;

On 3 March, Monday, it opened Rs185.15 higher at Rs1,110.90 price and closed at Rs1,110.90 same as its open price because shares were locked in upper circuit. AZ India announced the delisting offer on the same day;

On 4 March 2014, just a day after announcement, AZ India opened Rs127.10 higher at Rs1,238 than its previous closing price but fell by Rs107.40 to a day low of Rs1,177.60 and closed Rs46 down at Rs1,238.85

On 5 March, board of directors of AZ India announced that it seeks additional information from its Sweden based promoter AZP AB.

The suspicious spurt in volumes and price in this company calls for an investigations by the market regulator. But then while insider trading is rife in India, SEBI rarely acts, despite having spent Rs40 odd crore in sophisticated inter-market surveillance system.


The regulatory filing of AZ India mentions that it received scanned letter by email from its promoters regarding its voluntary delisting offer on 1 March, Saturday. If anyone had inside information about its delisting, a day before on 28th February, he/she would have bought heavily into the counter and sold it on 4th March at a handsome profit in just two days.

AZP AB, the Sweden-based promoter currently holds 75% of the total paid-up share capital of its subsidiary AZ India. As on December 2013, FIIs held 15.93% in AZ India. However, As per SEBI rules on delisting, AZP AB needed to buy an additional 15 % to raise its stake to 90% to delist.

Moneylife earlier wrote about, The deadly delisting itch of AstraZeneca Pharma India,  explaining how AstraZeneca is on course to achieve its decade-long plan to delist its shares from the Indian bourses by hook or by crook.




3 years ago

Yes a feature of this company has become that it should be announced. Every year or when the insiders decide they need to create a news to take up the stock.We come across such a instance , I have been a victim of such a fraud by the company in the past.This proved for me a situation wherein a very big loss had to be taken by me.


3 years ago

What about L&T finance. Before the announcement by NSE that the shares will be included in F&O the share prices moved.


3 years ago

Its not the only share that is traded inside trading there are quiet alot all the inside traders are patronised by sebi nse bse they knew very well who is operation g in whcih counter and the officials get their due share in the insider trading and one fine morning they would that we are going to release about yor inside trading and some of brokers should be caught and among the brokers they would be scape goat and after this episode nobody knew what happened and as such all in conspicracy with sebi nse bse is my conclusion if the sebi nse bse wants they bring the broker to very great extent and loot the investors money similarily viceversa so without their knowledge noting is done so all their saying of insider trading is just an crocodile tears to fool the investor


3 years ago

when the share price goes up the sebi normal procedure is accuse as inside trader when they find first day itself its going up why do they keep quiet infact they would have sent feelers to company about the movement when the company had not responded properly then they would raise the issue like inside trading its all the officials of sebi nse bse who lure the brokers and company to do inside trading after this they would accuse the company and afterwards they would keep quiet and what action taken by the inside trader the comapny and broker are kept mum this shows that their due share is received so the matter is kept in cold storage how the investors case even though they have fact they would not take any action similar would be case is my surmise

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