Monthly Archives: July 2016

PRPCP’s Faculty Director Katherine Franke Sheds Lights on Controversial Religious Liberty Bill at Congressional Hearing

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On July 12th, the Public Rights/Private Conscience Project’s Faculty Director Katherine Franke spent a few hours testifying before the House Oversight and Government Reform Committee at a hearing on the First Amendment Defense Act (FADA). This Act would prevent the government from penalizing, fining, or denying tax subsidies, grants, or benefits to individuals or groups because they act in accordance with a religious belief or moral conviction that marriage “is or should be recognized as the union” of two individuals of the opposite sex or two individuals of the same sex, or that “extramarital relations are improper.” In other words, the Act gives religious objectors blanket immunity to discriminate against others in the name of their religious beliefs about sex and marriage.

Unsurprisingly, the harms that FADA would impose on same-sex couples and families were a main focus of the hearing. Professor Franke’s testimony was particularly important, however, because she additionally discussed how the bill would interfere with civil rights protections and impact those who have had sex outside of marriage, including pregnant women and single parents.

The impact that FADA has on those who have had “extramarital relations” is oftentimes left out of the conversation when FADA, which is mostly described as an anti-LGBTQ bill, is discussed in the media. This could be because of the vagueness of the term “extramarital relations” or because it is hard to determine who has had sex outside of marriage and who has not, making the bill’s impact on those involved in “extramarital relations” less clear than its impact on same-sex couples. However, one surefire way to identify someone who has had such a relationship is the presence of a child outside of marriage. This makes the Black community an easy target for religious objectors who find “extramarital relations” morally wrong and objectionable — in 2012, 36% of Blacks over the age of 25 had never married, compared with 16% of whites, [1] and 70% of Black children are born to non-married parents.[2]

FADA could harm people in non-marital relationships, or who have children while unmarried, by giving religious objectors who want to discriminate the green light to bypass a wide range of laws enforced through fines and litigation by government agencies such as the Equal Employment Opportunity Commission (EEOC), the Department of Labor (DOL), and the Department of Housing and Urban Development (HUD). For example, FADA could prevent the Secretary of Housing and Urban Development from enforcing the Fair Housing Act against a landlord that advertises it will not rent to unmarried parents; prevent the federal government from denying Title X funding to a health clinic that provides family planning care only to married patients; and prevent the federal government from denying a grant to a religiously affiliated shelter that refused to house single mothers. Because of the many health and economic burdens and discriminatory practices that Blacks have faced in this country, it seems unjust that religious objectors would be able to compound these harms and discriminate against Blacks and other people of color in the ways described above.

FADA’s language on “extramarital relations” could also negatively impact domestic partnership laws, such as those in the District of Columbia, which create important property and support rights for individuals who register as domestic partners. These rights are similar to those that married couples have, including inheritance rights, alimony, and equitable division of partnership rights. Under FADA, individuals and groups could discriminate against a same- or opposite-sex couple in a domestic partnership if motivated by religion. For example, FADA could prevent the D.C. government from taking action against a retirement plan that refuses to provide annuity benefits to someone in a domestic partnership, a benefit that D.C. grants to those who are unwed.

FADA gives religious objectors blanket immunity to discriminate against those in extramarital relationships or married to someone of the same sex. If passed, the Act would not only harm those in the LGBTQ community; as a population that is less likely to be married and more likely to have a child while unmarried, FADA’s protections for those opposed to “extramarital relations” would impose a particular harm on Black communities.

[1] Wendy Wang and Kim Parker, Record Share of Americans Have Never Married, Pew Research Center, (September 24, 2014) http://www.pewsocialtrends.org/2014/09/24/record-share-of-americans-have-never-married/

[2] Brady E. Hamilton et al., Center for Disease Control and Prevention, National Vital Statistics Reports 41 Volume 64, Number 12 (2015) http://www.cdc.gov/nchs/data/nvsr/nvsr64/nvsr64_12.pdf

Katherine Franke’s Testimony to House Committee on Oversight and Government Reform Regarding the First Amendment Defense Act (FADA)

Today Professor Franke will deliver testimony on behalf of twenty leading legal scholars providing an in depth analysis of the meaning and likely effects of the First Amendment Defense Act (FADA), were it to become law.  We were particularly compelled to provide testimony to the Committee because the first legislative finding set out in FADA declares that: “Leading legal scholars concur that conflicts between same-sex marriage and religious liberty are real and should be addressed through legislation.”  As leading legal scholars we must correct this statement: we do not concur that conflicts between same-sex marriage and religious liberty are real, nor do we hold the view that any such conflict should be addressed through legislation. On the contrary, we maintain that religious liberty rights are already well protected in the U.S. Constitution and in existing federal and state legislation, rendering FADA both unnecessary and harmful.

Rather, FADA establishes vague and overly broad religious accommodations that would seriously harm other Americans’ legal rights and protections. Instead of protecting the First Amendment, the First Amendment Defense Act likely violates the First Amendment’s Establishment Clause.  The Act purports to protect free exercise of religion and prevent discrimination, yet in fact it risks unsettling a well-considered constitutional balance between religious liberty, the prohibition on government endorsement of or entanglement with religion, and other equally fundamental rights.

A link to Professor Franke’s written testimony may be found here, and via our Policy Page.

A live-streamed video of the Congressional hearing is accessible via YouTube, here.

A link to further information about the First Amendment Defense Act may be found here.

ACLU Charges Federal Government with Violating the Reproductive Rights of Refugee Girls

by Kira Shepherd

Under the federal government’s watch, refugee girls are being denied access to emergency reproductive health services that they desperately need. This is what the ACLU is arguing in their latest effort to keep overly broad religious exemption claims from infringing upon women’s rights and reproductive freedom. In late June, the civil liberties group filed a complaint charging the U.S. government with violating the First Amendment’s prohibition on establishment of religion by funding faith-based organizations that deny the unaccompanied minors they serve abortion and contraceptive access.

Since 2013, it is estimated that tens of thousands of unaccompanied children from El Salvador, Honduras, and Guatemala have crossed the border fleeing violence and poverty back home, or to be reunited with family members in the U.S.  Experts estimate that as many as 60 to 80 percent of women and girls who make this journey are raped on their way to the United States.[1] When unaccompanied minors cross the border, they are more often than not apprehended by federal agents and placed in shelters funded by the federal Office of Refugee and Resettlement (ORR). In 2014, nearly 57,500 unaccompanied minors were apprehended and transferred to ORR shelters.[2]

ORR issues grants to private entities, including a number of religiously affiliated organizations, to care for migrant minors until they are placed with family members in the U.S. The United States Conference of Catholic Bishops (USCCB) is one of ORR’s largest religious-affiliated grantees; it received $10 million in 2014 alone to care for unaccompanied minors. The USCCB and all the organizations that they subcontract with, such as Catholic Charities, explicitly deny their clients access to contraception and abortion – even in cases where the clients were raped or sexually abused

Take for instance the story of one young refugee, mentioned in the ACLU complaint, who was raped by one of her guides on her journey to the U.S. The minor found out she was pregnant while in ORR custody at a Catholic Charities facility in Miami, and became distraught at the possibility that she would not be allowed an abortion. After threatening to kill herself if she could not get an abortion, she was admitted to a hospital for suicidal ideation. After leaving the hospital, she found out that the Catholic Charities she was staying at refused to take her back because she was seeking to terminate her pregnancy.  His House, another religious organization that receives federal funding, refused to admit her as well. She was transferred to another facility and ORR eventually approved her request for funding for an abortion.

According to the ACLU, the federal government violated the constitutional guarantee of the separation of church and state by permitting the USCCB and other organizations to impose religiously based restrictions on the services unaccompanied immigrant minors received with taxpayer funds. In addition, the ACLU asserts that the federal government violated a number of statutes— including the Homeland Security Act, which states that government programs must fully protect the interests of unaccompanied immigrant minors — as well as an ORR regulation requiring all ORR-funded providers to provide unaccompanied immigrant minors who are victims of sexual assault with access to reproductive healthcare.

The ACLU started investigating the USCCB’s contraception and abortion refusals after hearing reports from workers at religiously affiliated organizations charged with caring for refugee teens. Workers claimed that some organizations were imposing their beliefs on minors by forcing them to leave the program if they needed reproductive care. After hearing these reports, the civil liberties organization made a Freedom of Information Act (FOIA) request for documents to determine the full scope of the problem and the government’s role. According to the documents they received, the government gave a few religiously affiliated organizations, such as USCCB and its sub grantees across the country, permission to refuse on religious grounds information about, access to, or referrals for contraception and abortion, even if the young person in their care has been raped. The government provides funding to USCCB through Catholic Charities to provide care for undocumented minors in a number of states across the country – including Arizona, California, Florida, New York, Texas, Virginia, and Washington.

This lawsuit is asking the court to step in and ensure that all religiously affiliated federal government grantees provide their clients with necessary and required care. If the ACLU wins, it will be a huge blow to religious organizations that have been imposing their religious views on refugee girls, denying them their reproductive rights. These organizations would have to start providing all mandated services to their clients or forgo federal grant funding.  If written broadly enough, the suit could even stop religiously affiliated government grantees from practicing other types of discrimination based on their religious beliefs, such as anti-LGBTQ discrimination. The question that the court should answer in this case is whether the government violated the Establishment Clause by advancing and endorsing a particular set of religious beliefs. And the answer appears to be an overwhelming yes. By allowing USCCB to impose its religiously based restrictions on services offered through a federal program, ORR has essentially subsidized USCCB’s religious beliefs. USCCB utilized a government contract to further its religious belief that abortion and contraception are wrong and impermissible. As the ACLU argues, that violates the guarantee of neutrality towards religion enshrined in the Establishment Clause.

[1] Ester Yu-His Lee, Faith Groups are Trying to Block Emergency Contraceptive from Raped Migrant Children, ThinkProgress (March 5, 2015) http://thinkprogress.org/immigration/2015/03/05/3627571/faith-refugee-contraception/.
[2] GAO Report, Unaccompanied Children, HHS Can Take Further Actions to Monitor Their Care, available at http://www.gao.gov/assets/680/675256.pdf.