Monthly Archives: November 2015

Religious Freedom for Refugees? Not So Fast…

By Elizabeth Platt, Associate Director, Public Rights/Private Conscience Project

Mere months after a host of prominent conservatives condemned the Supreme Court’s marriage equality ruling as an attack on religious freedom (one particularly colorful character called it “judicial tyranny” that would lead to the criminalization of Christianity), these same politicians seem to have had a change of heart. Not on marriage equality, of course, but on the importance of religious freedom in American society.

From shutting down mosques to barring Muslims from the oval office to demanding a Christianity test for Syrian refugees to the outrageous (albeit unclear) suggestion of creating Muslim registration system, conservatives seem to be caught in a vicious cycle of Islamophobic one-upmanship. The very same voices who clamored for new religious exemption laws and even held rallies for religious freedom featuring “special guests victimized by government persecution,” seem to be leading the charge against Muslims both at home and abroad.

Lest one think these arguments have been taken up only among the most extreme on the right, even the relatively moderate Jeb Bush argued recently that “we should focus our efforts as it relates to refugees on the Christians that are being slaughtered.” And more than half the nation’s Governors are doing all they can to prevent Syrian refugees from being placed in their state.

Perhaps the most explicitly discriminatory suggestion has come from Ted Cruz—host of the aforementioned rally for religious freedom. Rather than Bush’s suggestion of prioritizing Christian refugees, Cruz has stated that only Christians should be permitted to enter the U.S., and Muslim refugees should be kept out, period.

Unsurprisingly, Cruz has not offered a plan on how to determine which refugees are in fact Christian. Bush suggested putting the burden of proof on the refugees themselves— “I mean, you can prove you’re a Christian,” he explained.

In the past, however, conservatives haven’t been so keen on government-imposed tests of religious faith. Hobby Lobby and other religious exemption cases brought under the Religious Freedom Restoration Act (RFRA) require the party requesting an accommodation to demonstrate a substantial burden on their sincerely held religious belief. Conservatives have argued that this should be an extremely weak test—contending that courts have no authority, or ability, to inquire into the sincerity of a religious belief, or to evaluate how closely it correlates with official religious doctrines. So if the Supreme Court shouldn’t be able to question the religious beliefs of a craft store owner, why do conservatives want State Department or Department of Homeland Security agents deciding whether someone is Christian?

The recent calls for explicit religious discrimination and persecution against Muslims by major political leaders are chilling. They also belie any claims that these politicians are honestly concerned with religious freedom. Rather, they are interested in religious rights only for those who share their views on hot-button political issues like abortion, contraception, and LGBT rights.

For those who disagree… hope you enjoyed the holiday and escaped the stealth halal turkeys.

Recovery or Religion? The Problem with Faith-Based Alternatives to Incarceration

By Elizabeth Platt, Associate Director, Public Rights/Private Conscience Project

When the judge and prosecutor offered Nicklaus Ellison an opportunity to avoid a year in jail by enrolling in Teen Challenge, a “Christ-centered” substance abuse program, it seemed like the obvious choice. What Nicklaus—an openly gay 20-year-old from Knoxville, Tennessee— and his family didn’t know was that in addition to treating his addiction, Teen Challenge would also attempt to make him straight.

Nicklaus died from a drug overdose in a stranger’s apartment shortly after running away from a Teen Challenge facility in Jacksonville, Florida in 2011. Among his belongings, his mother found a letter that Nicklaus had written to his sister but never sent. She was troubled when she read her son claim in the letter, “they de-gayed me after all. Once I realized that God doesn’t make homosexuals I realized something; there’s no such thing.” A recent New York Times article relayed the enormous difficulties that Nicklaus’s family has faced in seeking justice for—or even information about—his death.

Nicklaus is by no means the only person who has faced a choice between jail or participation in a Christian program. Several federal and district courts across the country—including the Supreme Court of Tennessee— have held that widespread practices of requiring participation in a religious treatment program as an alternative to prison, or as a condition for maintaining certain privileges within prison, violate the Establishment Clause of the First Amendment.

Yet despite these decisions, the practice evidently continues.

Not only are judges, prosecutors, and prison systems sending people to religious programs, but taxpayers are paying for them. During his presidency, George W. Bush spoke out in support of Teen Challenge as a part of his faith-based initiative program. While the Department of Justice (DOJ) recently amended agency rules, aiming to ensure that “Federal financial assistance is not used to coerce or pressure beneficiaries along religious lines,” the agency also acknowledged that “Faith-based organizations that receive federal funding are permitted to use religious terms in their organizational names; select board members on a religious basis; include religious references in mission statements and other organizational documents; and post religious art, messages, scriptures, and symbols in buildings where they deliver federally funded services and benefits.” And as recently as November 2015, DOJ awarded a grant of over $38,000 to Teen Challenge in Minnesota.

Forcing anyone to participate in a religious program is deeply problematic and clearly unconstitutional, but the situation is even more dire for people like Nicklaus. LGBT people already face high rates of discrimination in the criminal justice system, and coercing them into anti-gay programs like Teen Challenge can have devastating consequences.

No one should be forced to choose between Church and jail, and LGBT people with criminal convictions should not have to risk their dignity, health, and lives by being sentenced to programs that attempt to “convert” them. The fact that judges still enforce such requirements should trouble anyone who believes that our criminal justice system should be in the business of encouraging recovery, not salvation.


Will SCOTUS Call the “Bluff” of Religious Liberty Activists?

Originally posted at Religion Dispatches on November 9, 2015.

By Kara Loewentheil

If the announcement that the Supreme Court will hear arguments in a challenge to the Affordable Care Act’s contraceptive coverage requirement (CCR) makes you feel like you’re experiencing deja vu, you’re not exactly wrong.

After Hobby Lobby, the Administration took a slow and leisurely approach to creating new regulations for the accommodation process. Finally released in July, the regulations, among other things, instituted a process for those non-profit religious organizations (NPRO) that objected to the original accommodation.

Under the revised accommodation process, the NPROs do not have to directly inform their insurance provider or third-party administrator (meaning an entity that administers their insurance plan even if the organization pays for it themselves, which is called being “self-insured”) of their objection.

Instead the NRPO can inform the government, and the government will inform the insurance company or the TPA, which then has to provide the contraceptive coverage itself. (That is, unless the TPA is actually exempt, like the TPAs that are a form of an insurance plan called a “church plan”—the federal government lacks the ability to regulate those plans under ERISA and cannot require them to provide the coverage.)

If that seems silly—well, on some level, it kind of is. And here’s why: Inserting the government into the communication process was meant to address the complaint by some NPROs that even informing their insurance company or TPA of their objection to contraception made them complicit in the eventual provision of contraceptive coverage to their employees.

But it was never clear why an NPRO that objected to informing their insurance company or TPA was going to feel just dandy about informing the government so the government could inform the insurance company or the TPA.

In fact, of course, they didn’t—instead, various NPROs that had objected to the original form of the accommodation continued to object to the revised form of the accommodation. Until recently all the circuit courts to consider these claims had ruled against them, but then the 8th Circuit upheld a grant of preliminary relief in one of these cases, and now here we are, with the Supreme Court granting cert to several of the consolidated cases to consider a variety of questions involving NPROs’ objections to contraceptive coverage and RFRA’s requirements.

At bottom though, the question is fairly simple: Is the Supreme Court going to call the objectors’ bluff? I don’t say “bluff” because I think the NPROs are insincere—it’s not about their sincerity at this point. But the “bluff” in all of these developments is that there even exists some way of providing contraceptive coverage that the objecting NPROs would find acceptable.

And it’s been clear for a while now that the only solutions they would find acceptable are factually impossible outcomes in our current system: e.g., single-payer health care, or a government-funded birth control insurance program. Of course those are outcomes that the same organizations would be lobbying heavily against if they were proposed to Congress!

What’s really at issue here is whether the Supreme Court is going to allow religious objectors to completely opt-out of laws by continually re-defining the burden on their religious exercise, regardless of the impact on third parties and the harms done to them. And you can bet if that strategy succeeds here, we’ll see it in use very soon in other contexts, like exemptions to LGBT non-discrimination laws and marriage equality protections. Let’s hope it doesn’t come to that.