Monthly Archives: February 2017

WA Supreme Court: LGBT Discrimination No More About Flowers than Civil Rights Were About Sandwiches

Originally posted at Religion Dispatches, February 22, 2017

Last Thursday, the Washington Supreme Court issued a significant and unanimous decision in the ongoing dispute—being litigated in courts across the country—over whether antidiscrimination law must yield to the religious beliefs of business owners opposed to marriage equality. The case involved a florist, Barronelle Stutzman, who refused to provide floral arrangements for a wedding between same-sex partners because of her deeply held religious beliefs about marriage.

In prior cases including Elane Photography, LLC v. Willock and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, courts have come down against business owners who refuse to provide goods and services for weddings between same-sex couples. Opinions in these cases have found that antidiscrimination laws are neutral, generally applicable measures that do not favor secularism over religion, or single out particular religious groups for ill treatment. The right-wing legal nonprofit Alliance Defending Freedom represented the business owners in both of those suits, and is currently representing Stutzman, who says she plans to appeal Thursday’s decision to the U.S. Supreme Court.

The opinions in Elane Photography and Masterpiece Cakeshop have declined to analyze the application of LGBT antidiscrimination laws to religious objectors using the rigorous “strict scrutiny” test. This test, used to evaluate government actions that specifically disadvantage religion, requires a law to be the least restrictive (to the religious objector) means of achieving a “compelling” government interest.

In this latest opinion, State of Washington v. Arlene’s Flowers, the court did subject Washington’s antidiscrimination law to the strict scrutiny test. They did so because the free exercise provision of Washington’s state constitution has been interpreted to be more protective of religion than the federal First Amendment, raising the possibility that the lower level of scrutiny required under the federal Free Exercise Clause may be insufficient.

While the court declined to hold that the strict scrutiny test was necessary when evaluating neutral laws under the Washington constitution, it found that applying antidiscrimination law to religious objectors satisfied even this demanding test. Importantly, the court recognized that providing exemptions for religious objectors was inherently inconsistent with the entire purpose of antidiscrimination law.

Stutzman had argued that applying the law to her could not be necessary to achieving any compelling government interest, since there was no “access problem.” In other words—since the couple could purchase flowers elsewhere, application of antidiscrimination law in this case served no purpose. In response, the court held:

We emphatically reject this argument…”[t]his case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches.” Br. of Resp’ts Ingersoll and Freed at 32. As every other court to address the question has concluded, public accommodations laws do not simply guarantee access to goods or services. Instead, they serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace. Were we to carve out a patchwork of exceptions for ostensibly justified discrimination, that purpose would be fatally undermined.

This statement strikes at the heart of the dispute between religious objectors and LGBT couples and families. Too often, the vital role that antidiscrimination law plays in establishing the equal place of long-subordinated groups in civil society gets lost or ignored in claims that focus on the availability of flowers or cake. Efforts to limit the scope of antidiscrimination law will not stop at wedding-related services (and, indeed, a federal judge ruled last summer that the religious beliefs of a funeral home owner justified his discrimination against a transgender employee). Washington’s opinion is clear on the real purpose of these laws: guaranteeing equality, not roses.

What Muslim Ban? A Religious Liberty Hearing in the Trump Era

Re-blogged from Religion Dispatches
Originally post, February 16, 2017

Today the U.S. House Judiciary Committee held a hearing on the “State of Religious Liberty in America.” What was perhaps most striking about the hearing was how dated many of the speeches and arguments felt—as if an Obama-era hearing was being held nearly a month into the Trump administration.

Three of the witnesses and many of the congresspersons who spoke conjured a world in which a hostile federal government seeks out well-meaning and peaceful Christians for baseless persecution, and in which the Civil Rights Act of 1964 represents the greatest threat to religious liberty. Meanwhile, other legislators and a lone witness desperately tried to redirect the conversation to the fact that President Trump campaigned on a platform of Islamophobia and recently admitted that he intends to prioritize immigration by Christian refugees. No speaker brought up other salient religious liberty issues, such as a recently-filed Religious Freedom Restoration Act (RFRA) claim challenging the Dakota Access Pipeline and an increased interest in using RFRA to resist immigration law.

The witnesses at the hearing included Kim Colby of the Christian Legal Society, Casey Mattox of Alliance Defending Freedom, Hannah Smith of Becket, and Rabbi David Saperstein, who served as United States Ambassador-at-Large for International Religious Freedom under President Obama.

The first three of these, all from conservative organizations that advocate for broad religious exemptions, pushed a narrative of religious persecution fueled by several fundamental misrepresentations: first, that efforts to combat anti-LGBTQ discrimination, or to provide access to contraception, constitute malicious anti-Christian harassment rather than attempts to expand access to jobs, services, housing, and health care; second, that groups seeking anti-LGBTQ and anti-choice exemptions want merely to “live-and-let-live” when in fact many of these organizations have consistently sought to ban LGBTQ relationships and abortion; and third, that issues around sex, marriage, and reproduction constitute the primary site for religious liberty disputes in the current political climate.

Sticking to their anti-Obama talking points, the speakers seem not to have grasped that it may become increasingly difficult to claim the mantle of “religious liberty” without speaking out against the Islamophobic rhetoric adopted at the highest levels of government, and the dramatic rise in anti-Muslim hate groups across the country.

While Representative Louie Gohmert of Texas sought in his remarks to pit religious minorities against each other, claiming that the legacy of the Holocaust was preventing Germany from adequately screening out Muslims that “hate Jews,” Representative Steve Cohen—Tennessee’s first Jewish congressperson—called Islamophobia the “latest form of dog-whistle politics” and noted that he himself had received an increased number of “jabs” for his faith in recent months. Thus Trump’s EO on immigration has shed a clear spotlight on what many advocates and legislators mean when they use the phrase “religious freedom”—and what they don’t.

Furthermore, no one in the room seemed to have fully grappled with the fact that expanding a right to religious accommodations may come back to haunt conservatives, as progressive faith leaders and religious practitioners search for ways to employ RFRA for their own spiritual practice, including helping Syrian refugees, protecting the environment, or providing sanctuary to undocumented immigrants.

None of this is to understate the continued relevance of anti-LGBTQ and anti-choice religious exemptions. Legislators have promised to re-introduce—and the President has promised to sign—the First Amendment Defense Act (FADA), which would sanction religiously-motivated discrimination against same-sex couples and unmarried pregnant and parenting persons. Many states continue to propose similar exemptions. And the recently-leaked Executive Order on religion, if signed, would provide legal cover for even large companies to defy laws that conflict with certain religious beliefs about sex, marriage, and reproduction.

But as significant as those measures remain to LGBTQ families, unmarried parents, and women, what was left unsaid during the hearing is of equal import: the religious right may not have a monopoly on the “religious freedom” platform for long, especially if they continue to ignore the new free exercise and establishment clause battles being waged in the courts, legislatures, and streets.

Trump Attempts to Pit LGBTQ Communities, People of Color, and Women Against Muslim Refugees and Immigrants

Trump’s latest executive order highlights what is becoming standard practice within his administration: obscuring the destructive impact of an action on some marginalized communities by couching it in a feigned concern for “protecting” others.

Reblogged from Rewire News

At the tail end of a relentless first week of presidential action targeting the environment, immigrants, reproductive health care, Native communities, and the free speech rights and employment of federal workers, President Trump signed an executive order to halt refugee resettlement and travel from seven Muslim-majority countries.

The order suspends the entire U.S. refugee resettlement program and bans entry of persons from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.

On the whole, the order is dangerous, misguided, and deeply rooted in this administration’s commitment to a xenophobic, racist, and Islamophobic agenda. However, two sections in particular highlight a manipulative tactic that is becoming standard practice within the Trump administration: obscuring the destructive impact of an action on some marginalized communities by couching it in a feigned concern for “protecting” others.

Section one of the order states that “the United States [will] not admit those who engage in acts of bigotry and hatred … or those who would oppress members of one race, one gender, or one sexual orientation.”

Trump’s attempt to couch this order in paternalistic, hollow concern for LGBTQ communities, communities of color, and women is both dangerous and insincere. It directly ignores the lived experiences of Muslims within those communities, falsely implies that Islam’s principles are inconsistent with equality and justice, and is in direct contrast with the hostility Trump, his administration, and his appointees have exhibited toward these communities domestically and abroad. It is also a clear attempt to exploit support for these communities in a way that obscures the order’s oppressive effect on Muslim immigrants and refugees.

Trump has made clear, through his campaign rhetoric, cabinet appointments, and vice presidential selection, that he has no interest in protecting the rights of women, communities of color, or LGBTQ people. Despite superficial statements claiming he strongly supports LGBTQ rights, Trump, Vice President Pence, and most of their cabinet appointees have a strong commitment to laws that would harm LGBTQ and reproductive rights, including the First Amendment Defense Act and similar state bills. Trump also campaigned heavily on a “law and order” platform, which has demonized undocumented immigrants and communities of color by pushing forward a false narrative about the problem of “inner-city” crime—a term that has long been coded as racist and intended to target Black communities in particular.

Secondly, the order’s alleged commitment to rejecting bigotry rings particularly false because it is apparently aimed at prioritizing the resettlement of Christians in Muslim-majority countries. While it does not name Christians explicitly, the order directs the secretary of the State Department, in consultation with the secretary of Homeland Security, “to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” Absent from the order, of course, is any prioritization of the communities Trump claims he is invested in protecting from supposedly dangerous Muslim refugees and immigrants.

Last week, Trump told the Christian Broadcasting Network that he intended to help persecuted Christians with his new refugee policies, because, he claims, they have been “horribly treated” in the refugee resettlement process, despite evidence showing that Christian and Muslim refugees have been approved for resettlement at roughly the same rate in recent history.

As others have also pointed out, although Trump has claimed a strong support for “religious liberty,” the selective religious beliefs that he supports seem to be grounded more in a self-serving version of Christian nationalism than justice for communities directly harmed by his particular brand of white, cis-hetero Christian supremacy. Although there might be a vocal minority of Christian leaders speaking out in support of reducing or banning Muslims from entering the United States, “leaders of nearly every Christian denomination, along with those of other faiths” criticized the action, which they argued does “not reflect the teachings of the Bible, nor the traditions of the United States,” reported The Atlantic.

During the weekend, large-scale protests erupted across the country, prompting federal judges in New York, Massachusetts, Washington State, and Virginia to hold emergency hearings, which resulted in temporary orders halting enforcement of the order. Despite judicial intervention, there continues to be reports of people and families, even those with visas and green cards, being detained for hours without food or access to lawyers at airports across the country—and some have already been deported. Adding to the confusion, Trump has continued to defend the order and the Department of Homeland Security has issued a statement emphasizing that despite court orders, the ban will stay in effect.

The framing of this order should serve as a reminder to advocates, journalists, and others to remain vigilant in calling out and resisting Trump’s attempts to pit some of our important justice and equality interests against others—particularly when the communities in question are not inherently at odds, and the administration has no intent in furthering the substantive rights of those communities.