Monthly Archives: January 2017

Trump’s Executive Order Barring Muslims is Unconstitutional

PRESS STATEMENT

FROM: 
Public Rights/Private Conscience Project

RE: Trump’s Executive Order Barring Muslims is Unconstitutional

DATE: January, 30 2017

MEDIA CONTACT: Elizabeth Reiner Platt, elizabeth.platt@law.columbia.edu, (212) 854-8079

Columbia Law School’s Public Rights/Private Conscience Project joins with thousands of lawyers, law professors, and legal organizations across the country in announcing that President Donald Trump’s recent Executive Order writing a religious preference into U.S. policy is unconstitutional. The Order—issued late Friday afternoon, hours after the administration recognized Holocaust Remembrance Day—suspends the entire U.S. Refugee Admissions Program, declares that “entry of nationals of Syria as refugees is detrimental to the interests of the United States,” and cuts off entry into the U.S. for certain nationals of majority-Muslim countries. Several provisions of the order are clearly intended to block immigration by Muslim refugees while providing a preference for some Christian refugees to escape violence and persecution by resettling in the U.S. The Executive Order amounts to both a form of state sponsored discrimination against persons of one particular faith and a religious preference for persons of another faith, in violation of the First Amendment of the Constitution.

While the Refugee Admissions program is suspended, Trump’s Executive Order nevertheless allows entry of refugees on a case-by-case basis if the administration deems their admission “in the national interest,” specifically mentioning members of minority religions abroad. When and if the program is reinstated, the Order directs the agencies to “prioritize” members of minority religions. The Order also directs agencies to recommend legislation to the President that would “assist with such prioritization.” There is no Constitutionally-legitimate reason why the U.S. should prioritize the entry particular religious groups, or determine that the entry of certain religious believers is or is not in the “national interest.” While written in ostensibly neutral language, it is apparent that the Order’s preference for refugees who are religious minorities in their country of origin is intended to shut out Muslim refugees.

Current federal law prohibits any preference, priority, or discrimination in the issuance of immigrant visas on account of the applicant’s race, sex, nationality, place of birth, or place of residence – religion is not on the list, 8 U.S.C. § 1152(a)(1)(A). Yet, under the Supreme Court’s interpretation of the Establishment Clause of the First Amendment, the new Trump immigration Executive Order is clearly unconstitutional. The state may not “act[] with the intent of promoting a particular point of view in religious matters,” nor may it “aid, foster, or promote one religion or religious theory against another.” Similarly, the state’s laws and policies must be neutral with respect to religion and between religions – that is, it may not favor adherents of one religion over another. The Court, and Justice Kennedy in particular, has taken the view that the Establishment Clause together with the Free Exercise Clause embrace an anti-persecution principle – expressly linking the religion clauses to the Equal Protection clause’s non-discrimination norm. In the words of Chief Justice Rehnquist, “we have sometimes characterized the Establishment Clause as prohibiting the State from ‘disapprov[ing] of a particular religion.’” Thus, there are many grounds on which to challenge the new anti-immigrant Executive Order, both for persons holding valid immigrant visas and for those seeking new visas or refugee status. One of those grounds is that this odious new policy violates the Establishment Clause of the First Amendment.

While the Order leaves open the confounding questions of what constitutes a religious “minority” considering the great diversity of beliefs and practices within major world religions, as well as how the State will identify religious adherents, it is clear from both the face of the Order and the context around its creation that Trump’s actions are intended to discriminate based on religious belief. President Trump has pledged to instate a Muslim ban throughout his campaign, and he has now taken a significant step to fulfill this promise. “At its core, the Establishment Clause of the First Amendment forbids the U.S. government from determining which religions or religious beliefs are or are not acceptable, desirable, or American,” said Elizabeth Reiner Platt, Director of PRPCP. “This Order violates that crucial limitation.”

“It is alarming that one of the Trump Administration’s first policies is to issue a religious litmus test for refugees and immigrants seeking entry to the U.S.,” observed Katherine Franke, Sulzbacher Professor of Law and Faculty Director of PRPCP. “If the First Amendment of the U.S. Constitution stands for anything it is that the state must neither prefer or discriminate members of any particular religious tradition when it issues policy.”

Report: Church, State & the Trump Administration

PRESS RELEASE

JANUARY 30, 2017 

Trump and Cabinet Nominees Seek to Restrict Muslim Rights, Break Down the Wall Between Church and State

MEDIA CONTACT: Ashe McGovern
amcgovern@law.columbia.edu

A new document issued by the Public Rights/Private Conscience Project (PRPCP) at Columbia Law School outlines the numerous areas in which the Trump administration will seek to advance particular conservative Christian tenets, restrict the rights of religious minorities, and break down the barrier between church and state. Enactment of the administration’s policy priorities would call into question the careful balance that currently exists between the First Amendment and other fundamental rights guaranteed under the Constitution. The report, entitled Church, State & the Trump Administration, highlights the ways in which the new administration’s early executive actions and cabinet nominations, as well as his campaign rhetoric and proposed policies, indicate hostility toward religious liberty guarantees of the First Amendment and an intentional disregard for other fundamental rights guaranteed by the Constitution. The report will continue to be updated in the coming weeks as the administration takes further action.

Despite his stated commitment to religious freedom, during his first week in office President Trump has issued an Executive Order that clearly expresses an official State preference for Christianity, and disapproval of Islam. Furthermore, Trump has consistently demonstrated that his policies will be grounded in the concerns of certain conservative Christian groups. His Executive Order reinstating a significantly expanded version of the anti-choice global gag rule, an expected Executive Order sanctioning anti-LGBTQ discrimination, and his selections for cabinet appointments all point to an administration that will seek to further particular religious ideals while breaking down the barrier between church and state.

President Trump and cabinet appointees appear to hold a deeply flawed understanding of the First Amendment, and particularly the Establishment Clause, which prohibits the government from favoring or disfavoring any religious group or belief. If confirmed, many of his appointees are likely to implement policies that will harm the rights of religious and other minorities, particularly Muslim communities, LGBTQ people, and communities seeking access to adequate healthcare and protection of their reproductive rights. A recently released report by PRPCP also highlights the ways in which communities of color are particularly harmed by the religious exemptions that President Trump, Vice President Pence, and others in his cabinet have championed.

“Despite his insistence that the protection of religious liberties is a top priority, Trump has made clear, through executive orders and cabinet appointments, that he seeks only to prioritize a version of white Christian nationalism and supremacy, that, if left unchecked, would create tangible harms to many marginalized communities—and violate fundamental liberty and equality guarantees under the Constitution,” said Ashe McGovern, Associate Director of PRPCP.

“Religious freedom is fundamentally inconstant with the State’s endorsement of particular religions or religious beliefs,” said Elizabeth Reiner Platt, PRPCP’s director. “Anyone committed to free exercise rights should be deeply concerned with Trump and his cabinet’s apparent distain for the separation of church and state.”

“The new administration has shown a disturbing commitment to write the First Amendment out of the U.S. Constitution,” said Katherine Franke, Sulzbacher Professor of Law and Faculty Director of PRPCP.   “In its first week in office the Trump White House has been remarkably aggressive in both embracing a particular religious agenda in violation of the Establishment Clause and discriminating against people whose faith it disfavors in violation of the Free Exercise Clause of the First Amendment,” Franke continued.

Read the full report here.

 

Unmarried and Unprotected: How Religious Liberty Bills Harm Pregnant People, Families, and Communities of Color

PRESS RELEASE

FROM: PUBLIC RIGHTS/PRIVATE CONSCIENCE PROJECT

RE: New Report Reveals That Religious Exemptions Laws Disproportionately Harm Communities of Color

MEDIA CONTACT: Kira Shepherd, 215-908-4825, ks3377@columbia.edu

New York, NY – A new report shows how recent legislative efforts to expand religious liberty rights, such as the First Amendment Defense Act (FADA), allow religious objectors to violate laws that protect against pregnancy, familial status, and marital status discrimination. These measures will disproportionately impact women of color who are more likely to become pregnant and raise families when unmarried. The report issued by Columbia Law School’s Public Rights/ Private Conscience Project (PRPCP), entitled Unmarried and Unprotected: How Religious Liberty Bills Harm Pregnant People, Families, and Communities of Color, highlights. the under-examined negative consequences of many religious exemption bills – how overly-broad religious exemption laws can be used to undermine sexual liberty and equality rights.

Many recently proposed religious exemptions bills, most notably FADA, which President Trump has highlighted as a top legislative priority, would confer special protections for the religiously motivated belief that sexual relations should only take place between married different-sex persons. By allowing religious objectors to defy all laws that conflict with their religious beliefs about sex and marriage, FADA and similar bills would significantly undermine the reach of federal and state anti-discrimination laws, including the Pregnancy Discrimination Act, Fair Housing Act, and Equal Credit Opportunity Act. Such exemptions would permit (if not encourage) religious objectors to engage in a wide range of discriminatory acts against unmarried pregnant and parenting persons, including denial of employment, housing, public benefits, and access to social services. An earlier report by PRPCP offers an overview of state and federal religious exemption bills.

Although these bills have the potential to harm anyone who has had sex when unmarried, people of color, especially African Americans, would particularly suffer their effects. This is because among all racial groups, African Americans are the most likely to have and raise children outside of marriage. According to data from the National Center for Health Statistics, 70% of African American children are born to parents who are not married, followed by 67% percent of Native American children, and 53% percent of Hispanic children, compared with 35% for children born to white women. In addition, because most women of color earn less than white women and are less likely to have financial cushions, religious exemptions laws that sanction employment, housing, and benefits discrimination stand to present women of color with far greater financial burdens.

“This report shows that policymakers across the nation are leveraging religion to push forward crude and discriminatory laws that impose extreme financial, dignitary, and emotional harm on women of color and their families,” said Kira Shepherd, Associate Director of PRPCP’s Racial Justice Program. “These laws could turn back the clock on some of the progress this country has made towards racial justice. They have the potential to take us back to a dark era where certain religious views were used as a justification for legal discrimination.”

PRPCP Director Elizabeth Reiner Platt said, “Women of color already face disproportionately high rates of pregnancy discrimination. In the name of protecting religious beliefs, FADA and similar state-level exemptions would impose yet another burden on many low-income families and families of color.”

Read the full report here.

PRPCP is a think tank based at Columbia Law School whose mission is to bring legal academic expertise to bear on the multiple contexts in which religious liberty rights conflict with or undermine other fundamental rights to equality and liberty. To learn more about the organization visit our website at: http://web.law.columbia.edu/gender-sexuality/public-rights-private-conscience-project.

PRPCP is on Facebook and Twitter.  Follow us to keep up to date with the latest information regarding our research, programs, and events.

Ben Carson’s “Judeo-Christian Nation” Vision Threatens Housing Equality

Today, former Presidential candidate Ben Carson is appearing before the Senate Judiciary Committee for a hearing on his nomination to become Secretary of the Department of Housing and Urban Development, or HUD. HUD is the federal agency tasked with administering and overseeing a wide range of vital housing programs and services, with a budget of over $32 billion. It is also the agency responsible for enforcing the federal Fair Housing Act, or FHA, which prohibits discrimination on the basis of race, color, religion, sex, familial status, or national origin, in the selling, renting or securing of funds for a dwelling.

Throughout his campaign for President, Carson argued that he would ground his role as a government official in his own religious principles—which he contends do not require him to protect the rights of lesbian, gay, bisexual, transgender and queer, or LGBTQ, people or Muslim communities, among other groups. Carson’s confirmation as Secretary of HUD would call into question whether this important role as HUD Secretary will be faithfully executed and whether the agency will continue to adequately protect those whose existence Carson deems to be in conflict with a properly organized “Judeo-Christian nation.

LGBTQ Communities

Despite the fact that the Supreme Court has made clear that the Fourteenth Amendment of the Constitution requires states to license marriage certificates to same-sex couples, Carson has stated emphatically that he does not support same-sex marriage, calling it an “extra right” and the LGBTQ people seeking it, “abnormal.” During his run for president, he strongly supported Kim Davis, the infamous Kentucky county clerk who refused to issue marriage licenses to same-sex couples, arguing that LGBTQ people should not be able to force their “way of life upon everybody else.” He has also asserted that Congress should fire federal judges who support marriage equality and pass a law to nullify the Supreme Court’s marriage equality decision, comparing LGBTQ people to those who practice bestiality and pedophilia.

Carson has also stated numerous times that transgender people’s desire to be legally recognized as their authentic selves is the “height of absurdity,” and should not be forced upon “normal people” by “secular progressives.” He also claims that gender is a biological fact, grounded in both biblical and genetic truths, despite contrary consensus from the country’s leading medical associations and the lived reality of actual transgender people.

Muslim Communities

Carson’s brand of biblical governance also distorts the lived experiences of Muslim Americans, despite his alleged commitment to religious freedom and liberty. Leading Muslim American groups have widely questioned the impact of Carson’s statements about Islam on his ability to govern fairly.

For example, in response to questions on whether he would support having a Muslim president, Carson claimed that “Muslims feel that their religion is very much a part of [their] public life and what [they] do as a public official, and that’s inconsistent with our principles and our Constitution,” going on to say he would not support a Muslim President unless they disavow their faith.  During a speech at Iowa University, Carson claimed that Islam is actually not a religion, but is instead “a life organization system” that has an “apocalyptic vision.”

These statements exist, ironically, in tandem with his insistence that “it is absolutely vital that we do all we can to allow Americans to practice their religious ways, while simultaneously ensuring that no one’s beliefs infringe upon those of others.”

Significant Gains May be Lost

Carson’s potential confirmation, and insistence on misunderstanding or ignoring constitutional and legislative protections for vulnerable communities, is both dangerous and will likely damage the protective framework created by the Fair Housing Act and regulations promulgated by HUD under the Obama administration.

For example, in 2012 HUD released urgently needed regulations to ensure LGBTQ people have equal access to housing and housing services, and in 2016, it extended those protections to emergency homeless shelters that were not previously covered.  These policies have been important not only because of the high rates of discrimination that LGBTQ people,  particularly transgender people of color, experience in housing, but also because LGBTQ people can still be denied housing and shelter in most states, absent federal protections from HUD. Further, Muslim Americans also report experiencing significant discrimination in housing, and under the Obama administration, both HUD and agencies including the Department of Justice, have been committed to forming partnerships to combat Islamophobia.

As Secretary of HUD, Carson would have the power to nullify and dismantle anti-discrimination gains made under the Obama administration. He would also have the ability to significantly weaken enforcement of the Fair Housing Act, and his statements indicate that he is likely to do just that for communities he deems unworthy of equal protection.