Attempting to Incite Trans Panic Requires More than a Nonpology

You always hear that covers are an art, but I’m not sure how much anyone really realizes that until they’ve worked on a cover (copy or art). Sure, you learn really fast when you publish something that shouldn’t have made it out of concept, but there’s a strange blindness that sometimes comes over you when you work on something too closely. If this seems strangely sympathetic to you, well, I am. I’ve been on the receiving end of the letters and calls that happen when cover art goes wrong, and I’ve made the point of trying very hard to learn what readers say when something does go wrong–which, thankfully, hasn’t happened to me in a very, very long time.1

July11CoverWhich is why, when I saw the July 11, 2014 cover of Science Magazine, I winced in sympathy. They were going to catch hell for it, that much was obvious, and it seemed obvious that it was just a matter of thoughtlessness that led to a sexist, reductionist image of lovely headless female bodies on a cover discussing means of reducing HIV in the Southern Hemisphere.2

I tweeted some vague comment of oh, bad cover, suck it up and admit it was a mistake, it happens in publishing, don’t repeat it, etc and platitude, and then went on about the Internet. Surely the CDC had done something else worth mocking, and I didn’t want to miss it.

That is when I saw Dr. Jacquelyn Gill‘s engagement with Science Magazine’s career editor, Jim Austin. Rather than attempt to summarize the conversation, I’ll just show it to you:
AustinTweets
Needless to say, the notion that Austin was defending the idea of inciting trans panic because it would be “interesting” didn’t go over terribly well. You should read Kate Forbes’ explanation of why this is emblematic of the problem with science (rather than Science Magazine alone) at this Shakesville post. You could also read what Andrew David Thaler and Emily Finke had to say at Southern Fried Science or Mad Art Lab, respectively.

Rather than repeat their excellent points, what I want to focus on is the apology from Science Magazine’s Editor-in-Chief, Marcia McNutt. Or, really, her classic nonpology.3 I’ll be using my primer on apologies as reference for how to apologize, since once again, we apparently need to go over this every couple of months.

The letter begins:

From Science Editor-in-Chief Marcia McNutt:
Science has heard from many readers expressing their opinions and concerns with the recent [11 July 2014] cover choice.

The cover showing transgender sex workers in Jakarta was selected after much discussion by a large group and was not intended to offend anyone, but rather to highlight the fact that there are solutions for the AIDS crisis for this forgotten but at-risk group.

Apparently this is an incredibly forgotten at-risk group, since the number of times the word “transgender” appears in this oh-so-special Strategies Against HIV/AIDS issue of Science Magazine? Three times.4

And just to clarify, McNutt: I was willing to give you a pass for a bad idea when I thought you were just attempting to sell Science via marginalizing and sexualizing women’s bodies. It’s nothing new, it’s just aggravating. The minute I had that context you seem to think I needed to find the cover okay, that the image was of transgender women in Jakarta who are also sex workers? That is when I became appalled, both that there is apparently not a single person in the entire editorial process at Science Magazine who has the ability to call stop on such a bad idea (either because no one saw it or no one felt safe in calling it out), and because your staff feel gotcha! trans panic is an appropriate artistic intent behind a cover.

Said apology continues:

A few have indicated to me that the cover did exactly that, but more have indicated the opposite reaction: that the cover was offensive because they did not have the context of the story prior to viewing it, an important piece of information that was available to those choosing the cover.

Apparently I should have said “said so sensible explanation continues,” as this isn’t an apology. This is a “well, SOME PEOPLE got it” defense. Oh sure, more people didn’t get it, but some people still did, so see? See? It’s not only Science Magazine that understood. Other people did, too.5 Okay, okay, wait, the next paragraph! Surely the apology is there, and one merely needed to establish context for what was being apologized for, if somewhat clumsily.

I am truly sorry for any discomfort that this cover may have caused anyone, and promise that we will strive to do much better in the future to be sensitive to all groups and not assume that context and intent will speak for themselves.

– Marcia McNutt, Editor-in-Chief, the Science family of journals

Well damn. It looks like we’ve got ourselves a genuine nonpology here! We have:

  • apologies for how you feel, which shifts the focus on to you and implies that this is an obligatory response because of how you feel, rather than any actual belief in having made a mistake;
  • a “may have caused” variation on the “if I offended anyone” nonpology that is frequently found falling out of politicians’ mouths;6
  • a nebulous promise of doing better without any indication that they’ve absorbed what the problem was to begin with.

To reiterate, an apology needs to do four things. It should: articulate and clearly recognize what the problem is; accept responsibility, without blaming anyone else (including the “if you felt” defense); express remorse in a clear, concise manner; and explain the remedy that will prevent this mistake from ever occurring again.

In particular, McNutt’s choice to completely ignore Austin’s “gazey” comments and subsequent comment that moral indignation is boring is problematic, because without addressing how Science will pull in the reins of this editor, there is absolutely no reason for anyone who is aware of the numerous problems in this cover to believe that there is any remedy that can happen. While Austin can defend his Twitter account as “personal” all he wants, he identifies who he is, who he works for, and does work representing Science Magazine on that account. He cannot then decide to offend numerous people and skip away from his affiliation as “nope nope all mine, not them.”

Science may have an image problem, but right now, the problem at Science Magazine clearly goes well beyond image–or cover.

  1. But boy was that first time a doozy. I hadn’t even technically been around when the issue was released, but I sure as hell heard about it from Every Single Nurse who was tired of being portrayed as a sexpot in a tiny white dress. Safety note: NEVER picture a nurse like that on your cover. NEVER. []
  2. See, occasionally I am still an optimist. TEACHES ME. []
  3. You can read the full apology without my commentary at this link. []
  4. It’s possible I missed one or two; I did your basic “open the open access articles, search on “trans” and see what comes up. Transmission was very popular. That said, to be technical, it was only two times, if you consider the fact that at one point they use the word “transgenders,” which, per GLAAD Media guidelines on writing about transgender folks, is problematic. Transgender is an adjective, not a noun. []
  5. Gosh, why do you have to be so sensitive? []
  6. She kept the nonpology short and sweet and classic over on Twitter: “we apologize to those offended.” []

Ziploc: There’s No Better Way to Protect Your Select Agent Investment

A lot of interesting testimony came out of yesterday’s House Energy and Commerce Oversight and Investigations Subcommittee hearing, which was titled “Review of CDC Anthrax Lab Incident,” but broadly covered the numerous slapstick-’cept-it-ain’t-funny errors around dangerous pathogens research at the Centers for Disease Control and Prevention.

I don't know about you, but I feel safer already.

I don’t know about you, but I feel safer already.

For those just joining the conversation, these hilarious mishaps have included leaving activated anthrax in unlocked, unsecured refrigerators; mixing high pathogenicity avian influenza with low pathogenicity avian influenza and then shipping it over to the US Department of Agriculture in the worst version of novelty surprise in a can ever; and using ziploc bags to transport petri dishes between labs. And as an added bonus, there was some discussion about the broader issues of the proliferation of biosafety laboratories working on select agents.

In particular, the statement of Nancy Kingsbury, PhD, the Managing Director, Applied Research and Methods, at the Government Accountability office, is worth a read. The statement pulls no punches, saying:

No federal entity is responsible for strategic planning and oversight of high-containment laboratories. … No one agency is responsible for determining the aggregate or cumulative risks associated with the continued expansion of high-containment laboratories; according to experts and federal officials GAO interviewed for prior work, the oversight of these laboratories is fragmented and largely self-policing.

In fact, since 2001, the proliferation of biosafety laboratories has resulted in nearly 1500 laboratories in the United States alone that handle and do research on dangerous pathogens.

If only there were some sort of national advisory board for biosecuri-oh wait!

Except, as has already been noted, the NSABB hasn’t met in nearly two years. But that’s okay, you see; the current chair of the NSABB1 wants you to know that this is intentional! Samuel L. Stanley Jr., MD, says that the NSABB has “been waiting essentially for the new federal guidelines to come out on institutional implementation of DURC policy. We wanted to have a look at what the federal agencies would come up with.”2

PicardOneJob-200One job.

You guys had one job.

Well, wait. Okay. This can easily be clarified by looking at the NSABB charter, which was recently revised, so clearly it is timely and up-to-date and will clarif-

The NSABB will provide advice on and recommend specific strategies for the efficient and effective oversight of federally conducted or supported dual use biological research, taking into consideration both national security concerns and the needs of the research community to foster continued rapid progress in public health and agricultural research.3

Damnit.4

In Stanley’s defense, he argues that these recent “issues” at the CDC are surely concerning as a scientist, but they’re really not about dual-use or gain of function research, so they don’t involve the NSABB. It wasn’t, you see, created to be about biosafety.

It’s really such a bitch when the first bulleted item on the list of “description of duties” on your charter contradicts the interviews you give: Recommend strategies and guidance for enhancing personnel reliability among individuals with access to biological select agents and toxins.5

Funny thing. The last time I looked, anthrax sure as hell was a select agent. Oh look! So is H5N1.

Your move, Stanley. I suggest it involve picking up a phone and dialing 11 different numbers.

  1. Someone who has been the chair since 2012, so you do the math on how much practice he actually has being the chair of an organization that hasn’t met since… yup, 2012. []
  2. All of Stanley’s comments in this blog post are taken from CIDRAP‘s interview with him. Hi! Love you guys! []
  3. “Objectives and Scope of Activities,” NSABB Charter 2014. []
  4. Fun bonus note: the NSABB is, per their very own charter, supposed to be meeting twice every fiscal year. Should I give Stanley the benefit of the doubt to assume this is new with the 2014 charter, and that everyone would have loved to have met in the previous two years, but there just wasn’t anything going on in dual-use or gain of function rese…nevermind. []
  5. “Description of Duties,” NSABB 2014 Charter. []

Becky Bird Flu and HPANTHRAPOX (Biosecurity Satire)

As any fan of The Daily Show knows, satire is often the only defense.1 2

Adventures-Biosafety

HPANTHRAPOX-Cycle

  1. Becky Bird Flu coined by Nick Evans. …I can’t pin HPANTHRAPOX on anyone, though. That one is all mine. []
  2. If you’re wondering what this is a defense against, there’s an overview here. []

Remaining Inaugural Members of NSABB Dismissed Last Night

NSABBHowardFineIt’s not exactly been what one would call a banner month for the National Institutes of Health or the Centers for Disease Control and Prevention. In the last week and change, it’s been revealed that oops, the CDC completely screwed up how it handles anthrax and possibly exposed 86-odd people to anthrax and they accidentally shipped out H9N2 that had been contaminated with H5N1. Then, this morning, a study from the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service–a study that the CDC has known about since July 10–revealed such charming details as anthrax being stored in refrigerators in an unrestricted hallway with the key to one sitting in its lock.1 (I hope you weren’t planning on sleeping ever again.) And of course, in case any of that isn’t close enough to a Richard Preston novel, there was the whole “forgetting those vials of smallpox in cold storage” thing with NIH and the Food and Drug Administration.

As a result of all this Three Stooges-esque mishandling of select agents and scary things, the House Energy and Commerce Oversight and Investigations Subcommittee is convening Wednesday to ask Dr. Thomas Friedan, director of the CDC, and friends (like Joseph Henderson, deputy director of the CDC’s Office of Security and Emergency Preparedness; Jere Dick, associate deputy administrator of APHIS; and Nancy Kingsbury, a managing director of the Government Accountability Office) to come explain exactly how Larry, Moe, and Curly ended up wreaking havoc at the Center.

So naturally, Sunday night was the perfect time to dismiss the remaining inaugural members of the National Science Advisory Board for Biosecurity.
WTELF
Now, apparently the NSABB hadn’t met in two years, and according to Michael Osterholm, director of the Center for Infectious Disease Research and Policy at the University of Minnesota, Twin Cities, his last contact with the NIH regarding the NSABB was in the Spring of 2013.2 Which, if you’ve been following dual-use research of concern or gain of function research news, is concerning, to say the least.

But possibly even worse is how utterly tone deaf and cheerful this “your services are no longer required, you’re dismissed” email is. Apparently Mary Groesch is, in addition to being the Executive Director of the NSABB, the Queen of Perky. Don’t believe me? Lucky for you, I just so happen to have acquired a copy of the dismissal letter.

Dear Members of the NSABB,

Greetings! I hope that all is well with each of you. My purpose in writing to you—the last of the original NSABB members—is several fold. First, I wanted to tell you that a new slate of NSABB members has been approved as your replacements, and thus your service on the board is ending. Since you have all been so gracious as to extend your service for several years beyond your initial term, this may come as welcome news!

Yes, I’m sure it’s welcome news that, after a week of Really Bad Revelations from the CDC, NIH, and FDA, their expertise will no longer be needed. The expertise they bring as inaugural members of the NSABB. SiskoIsNotAmusedThe expertise they bring being the people who had to figure out how to deal with the Fouchier and Kawaoka H5N1 publishing crisis. I can’t imagine how any of that might be necessary or needed now.

But hey, don’t worry. The inaugural members of the NSABB that were dismissed have been invited to join the next NSABB meeting in the fall, where they can watch, as ad hoc members, as the new committee largely goes “nyah nyah” and ignores their recommendations. Of course, that’s just my interpretation of the email, but “I welcome you to attend in an ad hoc capacity the next meeting of the NSABB, where we will recognize your service on the Board,” “We will also recognize your service and introduce the new members to the Board,” and “We also would welcome your attendance at this meeting in a non-voting, ad hoc capacity both to contribute to our discussions and to say farewell” doesn’t exactly inspire confidence, faith, or trust in the now-gutted NSABB. In fact, I’m really only surprised that “YOU CANNOT VOTE AND YOU HAVE NO SAY” wasn’t included in bolded, underlined text.

What in the bloody hell is the NIH thinking? I’d ask if they have no policy or communications advisers on staff, except that I see at least one science policy analyst on the email CC list, so clearly this was signed off by at least one person who should know better.

When the theoretically premier laboratory in the world is as badly compromised by ineptitude as the CDC has stunningly demonstrated that they are, you don’t turn around and dismiss your experts. You hang on to those experts, grateful that they’re still around, and you say help. You say help really loudly. And then you sit down, shut up, and listen.

You don’t fire the people who’ve been around so long that they can say “I told you so.”

Unless, of course, that’s the point.
LowerYourExpectations
And frankly, at the moment, given who was released and their expertise, it’s hard to see how this is anything other than an effort to stack the deck towards people who will be sympathetic to the NIH and CDC, rather than be the critical, independent review board with teeth, a la the National Transportation Safety Board, that biosecurity research needs.

Which is not to say that all is lost, or that there are not people much more impressive and with much bigger sticks who are not willing to sit down and shut up and let the NIH run amok without oversight. While I wish the House committee all the best this Wednesday, my faith more strongly lies with the Cambridge Working Group,3 who ever-so-coincidentally met today in Cambridge,4 and their Consensus Statement on the Creation of Potential Pandemic Pathogens (see below for full text).

The following NSABB members were informed they were no longer needed Sunday evening:
Arturo Casadevall, MD, PhD – Chair, Department of Microbiology & Immunology, Albert Einstein College of Medicine
David R. Franz, DVM, PhD, Colonel, USA (Retired) – Former Commander, United States Army Medical Research Institute for Infectious Diseases
John A. Gordon, General, USAF (Retired) – Former Deputy Director, CIA
Michael J. Imperiale, PhD – Professor and Associate Chair, Department of Microbiology and Immunology, University of Michigan School of Medicine
Paul Keim, PhD – Regents’ Professor and Cowden Chair in Microbiology, Department of Biological Sciences, Northern Arizona University
Stanley M. Lemon, MD – Professor of Medicine, Division of Infectious Diseases, University of North Carolina School of Medicine
John R. Lumpkin, MD, MPH – Senior Vice President and Director, Targeted Teams, Robert Wood Johnson Foundation
Stuart B. Levy, MD – Director, Center for Adaptation Genetics and Drug Resistance, Tufts University
Michael Osterholm, MD, PhD – Director of CIDRAP, University of Minnesota
David Relman, MD – Department of Medicine, Division of Infectious Diseases,
and Department of Microbiology & Immunology, Stanford University
James A. Roth, DVM, PhD – Director, Center for Food Security and Public Health, Iowa State University

Maybe it’s just me, but that’s a list of guys5 and expertise I’d feel better having on the NSABB than off.

Especially right now.

Definitely right now.


The below text has been reprinted with permission. Please share. Please do not credit Kelly Hills for this work. She just happened to get a copy and the permission to post it.6

July 14, 2014

Cambridge Working Group Consensus Statement on the Creation of Potential Pandemic Pathogens (PPPs)

Recent incidents involving smallpox, anthrax and bird flu in some of the top US laboratories remind us of the fallibility of even the most secure laboratories, reinforcing the urgent need for a thorough reassessment of biosafety. Such incidents have been accelerating and have been occurring on average over twice a week with regulated pathogens in academic and government labs across the country. An accidental infection with any pathogen is concerning. But accident risks with newly created “potential pandemic pathogens” raises grave new concerns. Laboratory creation of highly transmissible, novel strains of dangerous viruses, especially but not limited to influenza, poses substantially increased risks. An accidental infection in such a setting could trigger outbreaks that would be difficult or impossible to control. Historically, new strains of influenza, once they establish transmission in the human population, have infected a quarter or more of the world’s population within two years.

For any experiment, the expected net benefits should outweigh the risks. Experiments involving the creation of potential pandemic pathogens should be curtailed until there has been a quantitative, objective and credible assessment of the risks, potential benefits, and opportunities for risk mitigation, as well as comparison against safer experimental approaches. A modern version of the Asilomar process, which engaged scientists in proposing rules to manage research on recombinant DNA, could be a starting point to identify the best approaches to achieve the global public health goals of defeating pandemic disease and assuring the highest level of safety. Whenever possible, safer approaches should be pursued in preference to any approach that risks an accidental pandemic.

Amir Attaran, University of Ottawa
Barry Bloom, Harvard School of Public Health
Arturo Casadevall, Albert Einstein College of Medicine
Richard Ebright, Rutgers University
Nicholas G. Evans, University of Pennsylvania
David Fisman, University of Toronto Dalla Lana School of Public Health
Alison Galvani, Yale School of Public Health
Peter Hale, Foundation for Vaccine Research
Edward Hammond, Third World Network
Michael Imperiale, University of Michigan
Thomas Inglesby, UPMC Center for Health Security
Marc Lipsitch, Harvard School of Public Health
Michael Osterholm, University of Minnesota/CIDRAP
David Relman, Stanford University
Richard Roberts, New England Biolabs
Marcel Salathé, Pennsylvania State University
Silja Vöneky, University of Freiburg Institute of Public Law, Deutscher Ethikrat
Affiliations are for purposes of identification only and do not imply any institutional endorsement

  1. U.S. inspectors find further anthrax violations, mishandling []
  2. Quote taken from Jon Cohen’s rapid coverage of the dismissals. []
  3. This link may not have propagated yet, but the domain was registered and should be going live any minute now. Aaany minute now,… []
  4. No, really. It’s been in the works for week. It was one of those TIMING OF THE CENTURY sort of things. []
  5. Yep, all guys. I know. Different topic for a different night. []
  6. Can’t imagine how that happened. []

Hobby Lobby, Contraception, & the Supreme Court Ruling

The Roberts CourtAs expected, the last case ruled on before the Supreme Court of the United States adjourned until October was the Hobby Lobby/Conestoga case. For those unaware, this case is based on the Affordable Care Act’s contraception mandate, classifying contraceptives as preventive healthcare required under all insurance plans without a co-pay. Hobby Lobby and Conestoga Wood both objected to this, saying that covering some forms of birth control, like the IUD/IUS or Plan B, violated their religious beliefs by requiring them to fund abortive medications.1

Unfortunately, SCOTUS ruled for Hobby Lobby/Conestoga, agreeing that the contraception mandate of the Affordable Care Act violates the Religious Freedom Restoration Act.

Now, before we get into the particulars,2 let’s go over the generals:

  • NO, SCOTUS did not overturn the contraception mandate.
  • NO, SCOTUS did not rule companies do not have to provide contraception to employees.

This is a limited ruling that does not affect publicly-held corporations, or privately or closely-held corporations that do not also have sincere religious beliefs.

So what did happen? SCOTUS ruled that closely-held corporations owned by people with sincere religious beliefs do not have to provide contraception coverage that violates those sincerely-held religious beliefs.

It’s important to note that this is a very, very narrow ruling. In the majority rule, Justice Alito noted that this particular ruling would not give companies room to discriminate; for example, a closely-held corporation owned by folks whose religion finds gay people an abomination would not be allowed to freely discriminate against gay folks. This ruling does not overturn federal protections for suspect or quasi-suspect classes.

…your eyes just glazed over, didn’t they? At the end of this post, you’ll find a treatise on legal vocabulary that might help the above make sense. For now, let me put it into English for you: highly religious families that own large businesses that employ lots of people but don’t share that stock love around are allowed to deny female employees certain types of contraception based on scientifically incorrect notions of what an abortion is, but that’s all they’re allowed to do.

In line with the Citizen’s United ruling that says corporations (are people too) have free speech, this ruling says that a small, small group of companies in the United States are protected under the RFRA, because they have a religion.

In the run-up to this decision, I’ve quipped (repeatedly) that I’ve never seen a corporation in a church before. SCOTUS would reply: when that company is held by five or fewer related family members with shared sincere religious beliefs, if you’ve gone to church with that family, you’ve seen that corporation in church.

In other words, there is no firewall between the religious beliefs of a family and the company that the family runs. (This also would apply to a small group of people who share a sincere religious belief but are not related.)

The reason for this is that the ACA mandate fails the Sherbert Test. Justice Kennedy said that he believed that the option for religiously-affiliated organizations, such as Catholic hospitals, to opt-out of contraception coverage meant that the government could not prove that requiring Hobby Lobby and Conestoga Wood (or other closely-held corporations with sincere religious beliefs) to include contraception coverage in the health policies they contribute to was the least restrictive or burdensome option. In the case of the religiously-affiliated non-profit organizations, women are able to receive contraceptive coverage through separate health policies provided by the federal government at no charge; Justice Kennedy clearly feels that this will be extended to women who work at closely-held corporations with sincere religious beliefs against some contraceptives.

Of course, as SCOTUSblog noted, there are a couple of issues here. The bigger one is whether or not the Department of Health and Human Services has the authority to extend the non-profit contraception exemption to closely-held corporations; I expect we’ll see the Obama Administration clarify this quickly (and most people seem to think that HHS has the authority to do this, including SCOTUS).

The smaller issue is an interesting one. There are some non-profit groups that have argued that even signing a certificate that says they object to providing contraception coverage for their female employees is a violation of the RFRA. Today’s Hobby Lobby/Conestoga ruling seems to imply that SCOTUS does not find the process of certifying beliefs an undue burden under RFRA, which could effectively shut down some 20-odd cases around the country.3

So in sum, closely-held corporations can express religion and are protected under RFRA as long as it’s a sincerely-held religious belief, but the expression of their religious beliefs does not go so far as to allow discrimination; women employed by these companies should still be able to receive free contraceptive coverage from HHS, like women who work for religious non-profits do; and signing a piece of paper to indicate that your company’s sincerely held religious beliefs is probably not going to be viewed as an undue burden by SCOTUS.

It’s an interesting ruling, and one that I suspect isn’t going to make too many people happy, even while people will incorrectly make absurd statements on what the ruling means.

My personal take is a bit more esoteric: I actually think this Supreme Court is laying the groundwork for a robust federalized healthcare for everyone; clearly, they have established that it is appropriate for the government to offer and require insurance. This shifts another bit of the burden away from companies and towards the federal government, and I suspect that these tiny shifts are what it’s going to take to end up in a system of basic healthcare services provided by the government, with the option for additional insurance offered by companies as hiring incentives or purchased on the market for those interested. The question then becomes: is this intentional by Justice Alito and the other conservatives judges, or is this just happy coincidence as they strive to protect the rights of corporations to be people?

 


Let’s talk about vocabulary, everyone’s favourite subject! In specific, let’s get some definitions for SCOTUS vocabulary and legal language out and down on paper, so that we’re all on the same page.4

Closely-held corporation
A closely-held corporation is a private company owned, directly or indirectly, by a small group of people; the majority of the shares are held by five or fewer people.5 These are not publicly traded companies; if a shareholder wants to sell, it must be to an existing shareholder.

Religious Freedom Restoration Act
The RFRA is a 1993 law, signed by Bill Clinton, that prevents laws that substantially burden a person’s free exercise of religion. RFRA applies to the federal government, not state governments. As ACA is also a federal mandate, it is subject to scrutiny under RFRA. The law reinstates the Sherbert Test to see if an individual’s right to free expression of religion has been violated by the government, and mandates that any challenge involving the Free Exercise Clause of the First Amendment be subject to strict scrutiny.

Sherbert Test
This is the test used to determine whether or not the government has violated free expression of religion. For an individual, (and remember, corporations are people, too!), the court must determine:

  • whether the person has a claim involving a sincere religious belief, and
  • whether the government action is a substantial burden on the person’s ability to act on that belief.

If these two elements can be established, the government must then prove that it:

  • is acting in furtherance of a “compelling state interest,” and
  • it has pursued that interest in the manner least restrictive, or least burdensome, to religion.

Strict Scrutiny
This is the most stringent standard of judicial review available, and is generally invoked in situations that either involve suspect classifications or constitutional challenges.

Suspect and Quasi-Suspect Classification
A suspect classification is any group of people that meet criteria suggesting they have been or will be the subject of discrimination. This criteria includes a history of discrimination, hostility, prejudice, and stigma against the group in question, which can be based on stereotypes; immutable or highly visible traits; little to no political power; their distinguishing features do not render the group unable to meaningfully contribute to society.

The Supreme Court recognizes race, national origin, religion and alienage (not being citizen of the United States) as suspect classes. Gender, parentage (legitimacy), and sexual orientation are recognized as quasi-suspect classes.

Sincere religious beliefs
First, let’s be clear: a religious belief does not necessarily mean a belief in God(s). In Welsh v. United State, SCOTUS ruled that “the definition of “religion” is not dependent on a belief in a “Supreme Being.” A person’s beliefs may be deemed “religious beliefs” if those beliefs occupy in the life of that individual a place parallel to that of God in traditional religions.”6

In Brown v. Pena, SCOTUS cited three things to determine whether or not a belief is a religious belief:

  1. whether the belief is based on a theory of “man’s nature or his place in the Universe;”
  2. which is not merely a personal preference but has an institutional quality about it; and
  3. which is sincere.

Unique moral preferences thus are not also religious beliefs. (So, for example, being a vegan without also being a member of a religious order whose institutional and accepted religious texts required a vegan diet, would not be a religious belief.)

And finally, how do you determine if said religious belief is sincere? There are multiple cases that discuss what a sincere belief is7 and determined that elements of sincerity for the purpose of religious belief includes following the rules and restrictions of the religion in question, attendance to appropriate worship services, acknowledgment of religious holidays, association with other people of the same religion, and so on.

  1. We’re just going to sigh and ignore proper science right now, okay? Because otherwise we’re going to go nowhere but to the nearest hard surface. With our heads. []
  2. I am not a lawyer; let’s just get that out of the way up front. []
  3. Emily Bazelon has more about these cases over at Slate. []
  4. Remember, I am not a lawyer. []
  5. So sayeth the IRS. []
  6. All referenced court cases in this section are from the document “Selected Cases on Religious Discrimination” prepared by the Office of Legal Counsel for the US EEOC. []
  7. EEOC. v. Ilona of Hungary, Inc; EEOC v. Union Independiete De La Autoridad De Acueductos y Alcantarillados De Puerto Rico; Hussein v. Waldorf-Astoria; Bailey v. Associated Press; etc. []