Monthly Archives: June 2018

Professors of Law and Religion File Brief Supporting Arizona Immigration Rights Activist’s Use of RFRA as a Defense to Federal Criminal Prosecution

FOR IMMEDIATE RELEASE

MEDIA CONTACTS:

Professor Katherine Franke, katherine.franke@columbia.edu

No More Deaths, dropthecharges@nomoredeaths.org, 520.282.2993

June 21, 2018: Today, five prominent professors of law and religion filed an amicus brief in support of Dr. Scott Warren, a humanitarian aid worker who faces up to twenty years in prison for providing food and shelter to migrants crossing the Arizona desert. The amicus was filed in an Arizona federal court, and contends that Dr. Warren is entitled to an accommodation from being criminally prosecuted for acting on his sincerely held religious beliefs. Dr. Warren, is a member of No More Deaths/No Mas Muertes, a humanitarian aid organization that works to reduce deaths and suffering along the US-Mexico border by providing water, food and clothing to migrants crossing the Arizona desert. When doing this work, humanitarian workers routinely discover the bodies of migrants who have died due to lack of water, food or shelter in the rugged and remote desert terrain.

Last January, Warren was arrested and charged with three felonies for “harboring migrants” after Border Patrol agents allegedly witnessed him giving food and water to two migrants in the desert near Cabeza Prieta national wildlife refuge in Southern Arizona. Warren was arrested shortly after No More Deaths released a report documenting the systematic destruction by Border Patrol of water and food supplies left in the desert for migrants. Over a nearly four-year period, 3,856 gallons of water had been destroyed by federal officials. The report linked to video showing border patrol agents kicking over gallons and pouring them out onto the ground.

Warren has filed a motion to dismiss the indictment in his case under the Religious Freedom Restoration Act (RFRA), arguing that his sincerely held religious beliefs compel him to provide aid to people who are suffering – and dying – in the desert. Warren testified at the evidentiary hearing on his RFRA motion that for him “providing humanitarian aid is a sacred act.” He also described how spiritually devastated he has been when he has come upon human remains in the desert: “The work that we do in discovering, working to identify and recover the people who have died is one of the most sacred things that we can do as humanitarian aid workers in Southern Arizona and in the desert … we witness and we are present for people and for their families, the people who have died and who have perished.” When asked why he risked violating the law by providing water, food and clothing to migrants in the desert, he testified “Based on my spiritual beliefs, I am compelled to act. I’m drawn to act. I have to act when someone is in need.”

Katherine Franke, Sulzbacher Professor of Law at Columbia Law School, authored the brief on behalf of herself and Caroline Mala Corbin, Professor of Law at the University of Miami School of Law, Micah J. Schwartzman, Joseph W. @PRPCP_Columbia facebook.com/PRPCP @PRPCP_Columbia Dorn Research Professor of Law at the University of Virginia School of Law, Elizabeth Sepper, Professor of Law at Washington University School of Law, and Nelson Tebbe, Professor of Law at Cornell Law School.

“Given that this is the first case in which a RFRA claim has been raised as a defense in a federal criminal prosecution under immigration law we felt it was important that we provide the judge guidance on how to structure his consideration of a religious liberty claim in this context,” said Professor Franke. “The relation of religion to immigration law enforcement is all the more compelling given that Attorney General Jeff Sessions has quoted biblical text to justify the federal government’s aggressive immigration policies,” she continued. The law professors’ amicus brief is available here.

Media Contacts:

Professor Katherine Franke, katherine.franke@columbia.edu
No More Deaths, dropthecharges@nomoredeaths.org, 520.282.2993

Columbia Law Scholars’ Analysis of President Trump’s Travel Ban and the pending SCOTUS decision in Trump v. Hawaii

The Supreme Court of the United States is expected to provide a ruling in the case of Donald J. Trump, President of the United States, et al., Petitioners v. Hawaii, et al. on Monday, June 25th, 2018. The case, to be decided upon by the Supreme Court, was appealed by President Trump to Justice Kennedy on November 20th, 2017, and deals with President Trump’s Executive Orders on Travel and Immigration, frequently referred to as the “Muslim Ban.”
The focus of the case is the constitutionality of the third and most recent iteration of President Trump’s Ban on Travel and Immigration, informally known as the “Travel Ban 3.0”.  The first travel ban, issued as an Executive Order on January 27th, 2017, just one week after Trump took office, was blocked by Federal District Court Judge James Robart of Seattle, in a nationwide restraining order on February 3rd, 2017.  The second iteration was issued on March 6th, 2017, and subsequently blocked by the District Court of Hawaii on March 15th, 2017. The third iteration was issued on September 24th, 2017, and subsequently blocked by the U.S. District Court of Hawaii on October 17th, 2017.
A core concern regarding the multiple iterations of the travel ban has been the ways in which countries that would face greater travel restrictions were selected –  the initial ban focused on restrictions on the number of Syrian refugees the United States would accept, rescinded a number of visas, and imposed restrictions on travel to persons from Iraq, Iran, Syria, Yemen, Somalia, Sudan, and Libya. The title of the initial executive order, (Executive Order 13769), “Protecting the Nation from Foreign Terrorist Entry into the United States,” plays upon Islamophobic fears, which right-wing politicians have used to leverage support for anti-immigration policies. All 7 of the countries listed in Executive Order 13769 have populations a Muslim majority, and President Donald Trump’s history of xenophobic comments both during his campaign and through his time in office served as strong indicators to many that the “travel ban” would cause disproportionate harm to Muslim individuals.
The Public Rights/Private Conscience Project has followed the progress of President Trump’s Executive Orders regarding travel and immigration, and our team members have written detailed analyses of President Trump’s policies, the Travel bans, and their implications – with particular regard towards the balance of religious liberty and other fundamental rights.
As we await the Supreme Court’s ruling in Trump v. Hawaii, we collect here our work on these issues over the past 17 months.  Most recently, following the Supreme Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, Elizabeth Reiner Platt analyzed how the language and arguments engaged in the Supreme Court’s ruling and in the Justices’ opinions may bear on the outcome of Trump v. Hawaii.

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January 30th, 2017
Trump’s Executive Order Barring Refugees is Unconstitutional

The Public Rights/Private Conscience Project Blog, Columbia Law School
Access the full .pdf here

The Public Rights/Private Conscience Project issued a press release analyzing how Trump’s Executive Order was unconstitutional, as the order expresses a religious preference that violates the establishment clause of the U.S. Constitution’s First Amendment.

“The 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 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 nationals of certain 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.”

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January 30, 2017
Church, State & The Trump Administration
The Public Rights/Private Conscience Project
Blog Post, The Public Rights/Private Conscience Project Blog
Access the full report here

Following the first week of the presidency of Donald J. Trump, scholars from the Public Rights/Private Conscience Project issued a document outlining the ways we anticipated the Trump administration would 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 (which we have seen in the ensuing months since the initial publication of this memo) call into question the careful balance between the First Amendment and other fundamental rights guaranteed under the Constitution.

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January 31, 2017
Trump Attempts to Pit LGBTQ Communities, People of Color, and Women Against Muslim Refugees and Immigrants
Ashe McGovern, Rewire News
Access the full article, here

Ashe McGovern, Legislative and Policy Director with the Public Rights/Private Conscience Project, wrote at Rewire.News on how the January 27th Executive Order engaged insidious rhetoric such as pink-washing, and ‘divide-and-conquer’ tactics historically used to isolate oppressed groups from joining in solidarity with one another.

“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.”

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February 16, 2017
What Muslim Ban? A Religious Liberty Hearing in the Trump Era
Elizabeth Reiner Platt, Religion Dispatches
Access the article, here
In this thoughtful piece at Religion Dispatches, Elizabeth Reiner Platt, Director of the Public Rights/Private Conscience Project,  discusses the rhetoric engaged by Trump supporters in discussing President Trump’s Executive Order on Travel and Immigration, with particular regard to the rights of religious minorities. The piece also discusses the language and rhetoric engaged in the Executive order in relation to information leaked at the time of publication regarding President Trump’s Executive Order on religious liberty.

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March 14, 2017
Because You’re Not Fooling Anyone: Why Trump Travel Ban 2.0 is Still Unconstitutional
Elizabeth Reiner Platt, Religion Dispatches
Access the full article, here.

Elizabeth Reiner Platt analyzed the second iteration of President Trump’s ban on travel and immigration, discussing the ways in which the language of the second iteration was shifted to ostensibly avoid violating the First Amendment’s Establishment Clause.  Platt analyzes this rhetoric and the language of the second travel ban in the context of other cases, highlighting elements that arguably violate the U.S. Constitution.
“Trump’s second attempt at banning travel from certain Muslim-majority countries is clearly written to avoid being struck down under the Establishment Clause. Most notably, it no longer contains provisions that preference entry for religious minorities—language the President himself admitted was intended to prioritize entry for Christian rather than Muslim refugees.

So why isn’t the new EO constitutional, at least with regard to First Amendment claims? Because cutting its most obviously discriminatory provision doesn’t fix the fact that the new EO was passed with the same invalid purpose as the President’s first attempt—to reduce Muslim immigration into the U.S. When a candidate campaigns for nearly two years on the promise of banning, profiling, and even registering Muslims, that is context that a court can—and should—consider in evaluating whether his actions are motivated by religious animus or legitimate security concerns.”

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June 5, 2018
Will SCOTUS’s New Zeal for “Neutrality” Affect its Decision on the “Muslim Ban”?
Elizabeth Reiner Platt, Religion Dispatches, Rewire News
Access the full article here 

Elizabeth Reiner Platt analyzes the rhetoric and language engaged by the Supreme Court of the United States in the ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission (issued on June 4th, 2018), in regards to the Court’s pending decision in the case of Trump v. Hawaii.

“Of course the elephant in the courtroom is not how the Court’s repeated emphasis on religious neutrality squares with its past decisions, but how it will affect the other most important religion case this term—Trump v. Hawaii, the challenge to President Trump’s ‘Muslim ban.’ In Masterpiece, the Court explained that ‘Factors relevant to the assessment of governmental neutrality include… the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body.’ But it remains to be seen whether the Court will choose to engage in the same rigorous assessment of these factors in the travel ban case with regard to the president’s considerable history of disparaging statements about Muslims and his call for a ‘total and complete shutdown of Muslims entering the United States.'”

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June 6, 2018
What Implication does the Supreme Court’s Decision in #MasterpieceCakeshop  have for the #MuslimBan?
Liz Boylan, Public Rights/Private Conscience Project Blog
Access the blog post here

The blog post highlights PRPCP Scholar Elizabeth Reiner Platt’s article with Religion Dispatches regarding the Muslim Ban Case, and the ways in which the Supreme Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission may influence or ultimately be divergent from their ruling in their forthcoming ruling in Trump v. Hawaii.

“The article specifically discusses the language engaged by the Justices with particular regard to the concepts of ‘neutrality’ and ‘religious neutrality.’ The case, of Masterpiece Cakeshop v. Colorado Civil Rights Commission, brought to the fore issues regarding religious liberty, individual freedom, civil rights, and debates about the interpretation of Constitutional Law.

As the Supreme Court is expected to provide a decision in the next few weeks in regards to the case of Trump v. Hawaii, the court’s engagement of language related to these issues is of key interest.  At stake in Trump v. Hawaii is the constitutionality of President Donald Trump’s travel ban, more commonly referred to as the ‘Muslim Ban’ for the ways in which it’s language has been interpreted as being indicative of bias against Muslim persons and countries with large populations of Muslim citizens.”

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The Public Rights/Private Conscience Project team is available for comment regarding these pieces and issues directly related to this case and our other work – to contact Professor Katherine Franke, Elizabeth Reiner Platt, or Kira Shepherd, please reach out to Elizabeth Boylan, Associate Director for the Center for Gender & Sexuality Law at 212.854.0167 or eboyla@law.columbia.edu.

What Implication does the Supreme Court’s Decision in #MasterpieceCakeshop have for the #MuslimBan?

Elizabeth Reiner Platt, Director of PRPCP, has written an article with Religion Dispatches (an outlet of Rewire.News) providing analysis and reflection on the Supreme Court’s ruling on June 4th in Masterpiece Cakeshop v. Colorado Civil Rights Commission, “Will SCOTUS’ New Zeal for “Neutrality” Affect its Decision on the “Muslim Ban”?

The article specifically discusses the language engaged by the Justices with particular regard to the concepts of “neutrality” and “religious neutrality.” The case, of Masterpiece Cakeshop v. Colorado Civil Rights Commission, brought to the fore issues regarding religious liberty, individual freedom, civil rights, and debates about the interpretation of Constitutional Law.

As the Supreme Court is expected to provide a decision in the next few weeks in regards to the case of Trump v. Hawaii, the court’s engagement of language related to these issues is of key interest.  At stake in Trump v. Hawaii is the constitutionality of President Donald Trump’s travel ban, more commonly referred to as the “Muslim Ban” for the ways in which it’s language has been interpreted as being indicative of bias against Muslim persons and countries with large populations of Muslim citizens.

An excerpt from the article follows below:

Of course the elephant in the courtroom is not how the Court’s repeated emphasis on religious neutrality squares with its past decisions, but how it will affect the other most important religion case this term—Trump v. Hawaii, the challenge to President Trump’s “Muslim ban.” In Masterpiece, the Court explained that “Factors relevant to the assessment of governmental neutrality include… the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body.’” But it remains to be seen whether the Court will choose to engage in the same rigorous assessment of these factors in the travel ban case with regard to the president’s considerable history of disparaging statements about Muslims and his call for a “total and complete shutdown of Muslims entering the United States.”

The full article from Elizabeth Reiner Platt may be accessed via Rewire.News’ Religion Dispatches page, here.
Elizabeth Reiner Platt is the Director of the Public Rights/Private Conscience Project, and a thought leader on core issues related to the balance of law, rights, and religion in contemporary discourse and practice.  She is available for interview and comment regarding this piece, the Public Rights/Private Conscience Project, and the Supreme Court’s decisions in these and other related cases. We encourage you to reach out should you have any further questions.
For Media Inquiries, Contact:

Elizabeth Boylan, Associate Director, Center for Gender & Sexuality Law

Contact Details:

eboyla@law.columbia.edu | 212.854.0167

Columbia Law Scholars answer key questions regarding SCOTUS Decision in Masterpiece Cakeshop

Monday, June 4, 2018

After the U.S. Supreme Court agreed to hear the case of a Colorado baker who refused to make a cake for the marriage of a gay couple, nearly 100 “friend of the court briefs” were filed by groups on every side of the political and religious spectrum, including the Public Rights/Private Conscience Project at Columbia Law School

Professor Katherine Franke is the Sulzbacher Professor of Law, Gender and Sexuality Studies at Columbia University. Elizabeth Reiner Platt is the Director of the Public Rights/Private Conscience Project. Below, they answer 5 key questions regarding the judgment the Supreme Court of the United States delivered this morning in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission.

A version of this Q & A may be accessed from Columbia University News, here.


Q: How did the Supreme Court decide the Masterpiece Cakeshop case today?

A: Justice Kennedy ruled for a 7-2 majority that principles of religious liberty must be harmonized with principles of equality.  The Court’s ruling is quite narrow, actually, turning on the fact that some members of the Colorado Civil Rights Commission (the body that ruled on the case in the first instance) made statements that the Court thought demonstrated hostility toward religion.  So Justice Kennedy framed the issue as one of state-based discrimination against people who hold particular religious views, not as about the rights of same-sex couples or LGBT rights more generally.

Q: What should we make of the way the Court framed the issue?

A: Many people were disappointed to see the Court rule in favor of Jack Phillips, the Christian baker who refused to bake a wedding cake for two men because of his religious beliefs. They see the Court’s opinion as a defeat for the rights of LGBTQ people.  It’s important to recognize, however, that the opinion does not actually limit antidiscrimination law. The Court explained, “It is a general rule that [faith based] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”

In fact, the opinion contains soaring language recognizing the importance of gay rights: “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason, the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.”

Q: You wrote a “friend of the Court” brief in the case, does today’s decision reflect the arguments you made?

A: The Public Rights/Private Conscience Project and Muslim Advocates wrote a brief in this case on behalf of 15 religious minority and civil rights groups, arguing that religious liberty principles must be harmonized with equality principles, and that the rights of religious objectors find their limit when they undermine fundamentally important equality principles, such as Colorado’s anti-discrimination law.  We took the position that these are mutually reinforcing values, and we are pleased to see that the Court’s decision in Masterpiece Cakeshop embraces this approach, despite setting aside the ruling against Jack Phillips.

For example, the Court found that while a religious exemption allowing clergy to decline to perform a same-sex wedding may be appropriate “as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.”

Q: There are many similar cases making their way to the Supreme Court, where business owners have sought a religious exemption from complying with anti-discrimination laws.  How does today’s decision in Masterpiece Cakeshop affect those other cases?

A: None of those other cases include evidence of any bias against faith-based objectors, as was the case in Masterpiece Cakeshop.  So the big questions these cases raise— can a person’s sincerely held religious beliefs be used to avoid compliance with anti-discrimination laws— remains unanswered.  There were, however, some important signs in Justice Kennedy’s decision today that point in the direction that religious objectors may not win in those cases.  The Court cited approvingly a case from the 1960s that found that a restaurant owner could not deny service to African Americans even if he had a sincerely held religious reason for doing so.  So that principle remains as an important limit on religious liberty rights in contexts where overarching equality principles would be undermined by the overly broad deference to religion.

Q: What’s at stake in the tension between religious liberty and LGBTQ equality?

A:  There are two very radical ideas lying behind Jack Phillips’ legal claim here – both of which originate with his lawyers, the Alliance Defending Freedom.  The first is to establish the idea that some constitutional rights are more important than others.  In their view religious liberty rights are more fundamental than any other rights, and thus should occupy the top tier of constitutional protection.  The rights of LGBT people, women, people of color and others, in their view, should be seen as second tier, lower priority rights, and should yield when in conflict with religious liberty.  This approach to constitutional law derives from something we call “natural law” – that God’s law is supreme and no man-made law can be superior to God’s law.  This amounts to a radical theocratization of the constitution, a document that was intended to be an adamantly secular social contract.  The second idea is one that ideological conservatives have been committed to for generations: that the government cannot, indeed may not, tell business owners who they can serve and how they can run their businesses.  These folks objected to civil rights laws that prohibited race discrimination by businesses in the 1960s and have never accepted the fact that a business must serve all people, regardless of race, religion or sexual orientation, for instance.  They are using religion-based resistance to same-sex marriage in order to weaken the larger national commitment to enforcing non-discrimination laws in business settings.  In this sense, the Masterpiece Cakeshop case is the logical next step after the Hobby Lobby case, where a business owner objected to the federal government mandating the kind of employee benefits it had to provide.