All posts by Elizabeth Boylan

Press Advisory: Columbia Law Scholars Issue Memorandum on Civil Rights and Antidiscrimination Laws

Wednesday, November 28, 2018

PRESS ADVISORY
Columbia Law Scholars Issue Memorandum on Civil Rights and Antidiscrimination Laws: “Religion, Discrimination, and Government Funding: Enforcing Civil Rights Law After Masterpiece Cakeshop and Trinity Lutheran. 

Media Contact:
Elizabeth Reiner Platt, Director, Public Rights/Private Conscience Project
212.854.8079 | ep2801@columbia.edu

NEW YORK: The Public Rights/Private Conscience Project (PRPCP) at Columbia Law School has published a memorandum that clarifies the responsibility of state and local human rights agencies and commissions to robustly enforce civil rights laws—particularly in the context of government-funded social services—in the wake of the Supreme Court’s decisions in Masterpiece Cakeshop v. Colorado Civil Rights Commission and Trinity Lutheran Church of Columbia, Inc. v. Comer.

PRPCP’s memorandum, “Religion, Discrimination, and Government Funding: Enforcing Civil Rights Law After Masterpiece Cakeshop and Trinity Lutheran,” is designed to provide guidance to state and local governments on the proper balance between civil rights enforcement and constitutional free exercise rights. It also offers legislative and administrative steps that states and localities may take to ensure that the civil rights of their citizenry are robustly protected.

The rulings in Masterpiece Cakeshop, Trinity Lutheran, and other recent high-profile cases have confused rather than clarified the contexts in which religious objectors can be exempt from compliance with antidiscrimination laws. The Court’s decisions have sent mixed signals to state and local human rights agencies about how to vigorously enforce antidiscrimination laws while also protecting religious liberty. Unfortunately, many misconceptions remain about the responsibility of private actors—including government-funded social service providers—to abide by civil rights laws to which they have religious objections.

Furthermore, the federal government has taken steps to grant broad religious exemptions to federal contractors while diminishing the religious rights of federal grant beneficiaries. In response to this confusion, PRPCP’s memorandum, “Religion, Discrimination, and Government Funding: Enforcing Civil Rights Law After Masterpiece Cakeshop and Trinity Lutheran,” clarifies the responsibility of state actors to uphold and enforce civil rights laws, including within taxpayer-funded social service programs.

Access a .pdf of the Memorandum: https://www.law.columbia.edu/sites/default/files/microsites/gender-sexuality/PRPCP/civil_rights_guidance_11.26.18.pdf

Access a .pdf of this Press Advisory: https://www.law.columbia.edu/sites/default/files/microsites/gender-sexuality/PRPCP/Presser_CivilRightsGuidance.pdf

Attorney General Session’s “Religious Liberty Task Force”: DOJ Evangelists for the Religious Right

Cross-posted to Medium.com
On Monday, July 30th, the Department of Justice (DOJ) held a “Religious Liberty Summit” at which Attorney General Jeff Sessions announced that the Department would be developing a “Religious Liberty Task Force.” Attorney General Sessions explained that the task force “will help the department fully implement our religious liberty guidance” — referencing a DOJ guidance document on “Principles of Religious Liberty” issued in October of 2017 — “by ensuring that all Justice Department components… are holding that guidance in the cases they bring and defend, the arguments they make in court, the policies and regulations they adopt, and how we conduct our operations.”

Attorney General Sessions notes that this is the “next step” for the DOJ and the Trump administration to ensure the application of the “religious liberty guidance” issued by the Department of Justice in the fall of 2017. The guidance document that the task force is charged with implementing was promulgated in accordance with President Trump’s “Executive Order Promoting Free Speech and Religious Liberty.” President Trump signed the Executive Order in question in a ceremony on May 4th, 2017, the “National Day of Prayer,” in the White House Rose Garden. The guidance document, “Principles of Religious Liberty” was issued on October 7, 2017, from Attorney General Sessions in a Memorandum for all Executive Departments and Agencies, available here.

While “religious liberty guidance” and the creation of a “Religious Liberty Task Force” may sound innocuous, they are far from it; the guidelines speak to an interpretation of religious liberty that is frequently used by the Religious Right to deny and undercut the rights of marginalized individuals in the United States. In a statement released by the Public Rights/Private Conscience Project on the “religious liberty guidance” last fall, our scholars analyzed and characterized its edicts as such:

This document… misinterpret[s] the meaning and scope of religious liberty under the Constitution and the federal Religious Freedom Restoration Act (RFRA), demonstrating this administration’s continued commitment to elevating a particular set of religious beliefs over the health, safety and equality rights of women, LGBTQ[+] people, people of color, and religious minorities.

The “Principles of Religious Liberty” memorandum issued by the Department of Justice in October 2017 contains several examples of how the rhetoric of “religious liberty” has been mobilized by the Christian Right to enable individuals and businesses to deny rights and services to persons based on their religious beliefs. This insidious tactic undercuts equity and equality measures guaranteed by the constitution and a wide range of national and state laws. Cases such as Masterpiece Cakeshop — wherein baker Jack Phillips refused to bake a cake for the wedding of a same-sex couple on the basis that doing so would unduly burden his religious beliefs– have raised the visibility of this issue. What’s at stake is far more serious than cake, however: Similar cases include that of EEOC v. Harris, in which a funeral home fired Aimee Stephens, a transgender employee, for expressing her gender identity through clothing. The Funeral home asserted that Stephens’ gender expression was in violation of the Funeral home’s “closely held religious beliefs.” While the Sixth Circuit Court of Appeals ruled in favor of the Equal Employment Commission and Aimee Stephens, a petition has been filed for the case to be heard by the Supreme Court.

The Public Rights/Private Conscience Project has written extensively on the DOJ guidance in the DOJ Memorandum on “Principles of Religious Liberty,” as well as President Trump’s “Executive Order Promoting Free Speech and Religious Liberty,” which instructed Attorney General Sessions to develop the guidance. Our analyses have demonstrated how the Trump Administration and the Attorney General have sought to coopt the meaning of “religious freedom” and “religious liberty” in order to privilege certain conservative religious views as a form of white Christian supremacy:

In April of this year, the Public Rights/Private Conscience Project co-authored a report with the Center for American Progress, “Religious Liberty for a Select Few.” The report, available here, highlights how the actions of the Justice Department enable and promote discrimination in and by the Federal Government using the tools of the Justice Department and the Executive Branch.

The report, “Religious Liberty for a Select Few” follows a series of earlier works produced by the Public Rights/Private Conscience Project, which address concerns about how the Trump Administration is using a limited vision of “religious liberty” to promote a specific agenda. These works are outlined below:

· In October 2017, the Public Rights/Private Conscience Project published a statement critiquing Attorney General Sessions “Principles of Religious Liberty” issued in a DOJ Memorandum for all Executive Departments and Agencies on October 7th, 2017.

· In July 2017, Ashe McGovern, Legislative and Policy Director of the Public Rights/Private Conscience Project, wrote on the potential harms of the — at the time — anticipated guidance on religious freedom from Attorney General Sessions, in a blog post, “Trump’s ‘Religious Freedom’ Guidance Likely Imminent and Harmful to LGBTQ Communities and Others.”

· In May 2017, Elizabeth Reiner Platt, Director of the Public Rights/Private Conscience Project, wrote a blog post addressing President Trump’s Executive Order on Religious Liberty and Freedom of Speech titled, “’Religious Liberty’ Executive Order Will Limit, Not Enhance, Religious Freedom.”

· In May 2017, the Public Rights/Private Conscience Project released a joint statement with the Council on American Islamic Relations addressing concerns about the potential impacts of President Trump’s “Executive Order Promoting Free Speech and Religious Liberty” on religious minorities, available here.

· In January 2017, the Public Rights/Private Conscience Project published “Church, State, and the Trump Administration,” a report focusing on the promises of the Trump campaign related to faith and religion, and the actions undertaken during President Trump’s early tenure in regards to faith and the separation of Church and State.

The DOJ’s “Religious Liberty Task Force” will no doubt continue the administration’s work of advancing particular conservative religious beliefs about sexual health and autonomy, intimate and family partnerships, and pregnancy under the guise of religious liberty. This so-called “freedom” comes at a steep price, however, particularly for women, sexual and gender minorities, people of color, and religious minorities.


A full list of the Public Rights/Private Conscience Project’s writing on the way the Trump Administration and Attorney General Sessions actions regarding “Religious Freedom” and “Religious Liberty” follows below:

Report: Religious Liberty for a Select Few: The Justice Department Is Promoting Discrimination Across the Federal Government
Sharita Gruberg, Frank J. Bewkes, Elizabeth Reiner Platt, Katherine Franke, Claire Markham
April 3, 2018
https://www.americanprogress.org/issues/lgbt/reports/2018/04/03/448773/religious-liberty-select/

Columbia Law Experts Denounce DOJ Religious Liberty Guidance as Attack on Religious Liberty and Fundamental Equality Rights
The Public Rights/Private Conscience Project
October 6, 2017
http://blogs.law.columbia.edu/publicrightsprivateconscience/2017/10/06/columbia-law-experts-denounce-doj-religious-liberty-guidance-as-attack-on-religious-liberty-and-fundamental-equality-rights/

Trump’s “Religious Freedom” Guidance Likely Imminent and Harmful to LGBTQ Communities and Others
Ashe McGovern
July 20, 2017
http://blogs.law.columbia.edu/publicrightsprivateconscience/2017/07/20/religiousfreedomharmslgbtq/

Joint Statement by CAIR and PRPCP on President Trump’s EO on “Religious Liberty
The Council on American-Islamic Relations of New York and Columbia Law School’s Public Rights/Private Conscience Project
May 15, 2017
http://blogs.law.columbia.edu/publicrightsprivateconscience/2017/05/15/joint-statement-by-cair-and-prpcp-on-president-trumps-eo-on-religious-liberty/

“Religious Liberty” Executive Order Will Limit, Not Enhance, Religious Freedom
Elizabeth Reiner Platt
May 4, 2017
http://blogs.law.columbia.edu/publicrightsprivateconscience/2017/05/04/religious-liberty-executive-order-will-limit-not-enhance-religious-freedom/

Church, State, and the Trump Administration
The Public Rights/Private Conscience Project
January 30, 2017
https://web.law.columbia.edu/sites/default/files/microsites/gender-sexuality/PRPCP/prpcp_trump_church_state.pdf

Here’s what the Supreme Court’s Action on Arlene’s Flowers Means and Why You Should Pay Attention

The Center for Gender and Sexuality Law and the Public Rights/Private Conscience Project are concerned about the Supreme Court’s decision to grant a petition vacating the judgment and remanding the case of Arlene’s Flowers, Ltd. v. Washington for further consideration in light of the Supreme Court’s recent ruling in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. In February 2017, the Supreme Court of the State of Washington had ruled against Arlene’s Flowers. In the case, Arlene’s Flowers, Ltd. v. Washington, a florist company operating in Washington State, asserted that due to their religious beliefs and right to free expression that they were not compelled to create floral arrangements for a wedding for a same-sex couple. In a notable ruling, the court held that:

“[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.”

Following that Decision, Elizabeth Reiner Platt, Director of the Public Rights/Private Conscience Project, wrote on the outcome of the case for Religion Dispatches, in Washington Supreme Court: LGBT Discrimination No More About Flowers Than Civil Rights Were About Sandwiches noting parallels between the case and its ruling and foundational civil rights cases of the 1960s, cases such as Elane’s Photography and Masterpiece Cakeshop, and highlighting the arguments of the case in relation to the rhetoric of the Free Exercise Clause and the Establishment Clause.

After the release of the Supreme Court’s ruling in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission on June 4th, 2018, Elizabeth Reiner Platt, Director of the Public Rights/Private Conscience Project at Columbia Law School, wrote on the implications that the language, rhetoric, and precedents engaged in the ruling may have on other cases. The focus of her piece, Will SCOTUS’s New Zeal for “Neutrality” Affect its Decision on the “Muslim Ban”? is an analysis on how the Supreme Court Justices’ ruling and opinions in Masterpiece Cakeshop may relate to the Justices’ and the Court’s position on Trump v. Hawaii, which notably attends to the third iteration of President Donald Trump’s ban on Travel and Immigration.

Following Monday’s announcement regarding Arlene’s Flowers Ltd. v. Washington, Professor Katherine Franke, Sulzbacher Professor of Law, Gender and Sexuality, and Director of the Center for Gender & Sexuality Law at Columbia Law School wrote the following short analysis on social media contextualizing the case and concerns about the Supreme Court’s rhetoric within the framework of Racial Justice. An excerpt from Professor Franke’s analysis is italicized below.

Here’s what the Supreme Court’s action… on Arlene’s Flowers means and why you should pay attention:

The Court sent the case back to the lower court with instructions to reconsider its earlier decision in light of the SCOTUS ruling in Masterpiece Cakeshop. Remember that the cake baker in that case won because the Court regarded comments made by one member of the Colorado Human Rights Commission as evidencing bias against the baker’s faith: adjudication of the conflict between the rights of LGBTQ people and people of faith who seek an exemption from compliance with civil rights laws must be “untainted by any bias against a religious belief.”

In my view, the comments that supposedly evidenced bias against religious belief did not do so. Here’s what the Commissioner said:

‘Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.’

It is, in fact, true that religion has been used to justify great good and great evil, and has been invoked to legitimize both slavery and the Holocaust. This is just a fact. To state this is not to disparage religion generally, but the uses to which religion has been put. Pretty much any person of faith would agree with this.

So here’s how all this is relevant to Arlene’s Flowers. The Alliance Defending Freedom, the right-wing hate group that is representing both Jack Phillips in Masterpiece Cakeshop and Barronelle Stuzman in Arlene’s Flowers, takes the position that they can show bias against religion in the Arlene’s Flowers case, just as they (arguably) did in Masterpiece Cakeshop. But in making this argument they propose a radical reinterpretation of religious liberty and civil rights law: it is their position that *any* refusal to accommodate religion amounts to bias against religious belief. So say the lower court finds that enforcing the equality rights of LGBTQ people (or people of color, or women, or disabled people, or …) must take precedence over Barronelle’s religion-based objection to providing flowers for a same-sex wedding – ADF would claim that this amounts to bias against religion. Why? Because religion-based values must always supercede other values, such as equality, or due process, or free speech.

Now it is true that sometimes a failure to accommodate a person’s religious exercise amounts to a form of discrimination: say Abercrombie & Fitch’s refusing to hire a woman who wore a hijab/headscarf, or the NYPD refusing to permit a Sikh officer’s need to wear a turban as a faith-based practice. But to say that the failure to accommodate religious exercise amounts to discrimination in some contexts does not meant that it must be understood as discrimination in all contexts where an accommodation is requested. This is to render religious liberty an absolute right, which it is not. Fundamental, sure. Absolute, no.

What is worse, in an era when it is almost impossible to prove racial bias (see the Supreme Court’s decision today dismissing clear evidence of racial gerrymandering in Texas) the ADF is arguing that it be almost impossible to disprove religious bias. The Court requires a very strong showing of intent to discriminate in race cases, but if the ADF gets its way, one would not have to make any showing of intent to discriminate to prevail in a religious discrimination case – intent would be irrelevant.

As these, and other cases progress this term, we will be updating our blog and social media regularly with insights and work from our team members. We encourage you to follow the Public Rights/Private Conscience Project on Facebook and Twitter and to subscribe to the PRPCP’s mailing list for bi-weekly updates regarding our research, our work, and our programs.

Media Contacts:

Katherine Franke
Sulzbacher Professor of Law, Gender and Sexuality Studies
Director, Center for Gender & Sexuality Law
Katherine.franke@law.columbia.edu

Elizabeth Reiner Platt
Director, Public Rights/Private Conscience Project
Columbia Law School
ep2801@columbia.edu
212.854.8079

Kira Shepherd
Director, Racial Justice Program
The Public Rights/Private Conscience Project
Columbia Law School
ks3377@columbia.edu
212.854.6288

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.

PRESS RELEASE: Columbia Law School’s Public Rights/Private Conscience Project Co-hosts a Capitol Hill Briefing To Highlight The Impact That Religious Health Care Refusals Have On Women of Color

FOR IMMEDIATE RELEASE

Columbia Law School’s Public Rights/Private Conscience Project Co-hosts a Capitol Hill Briefing To Highlight The Impact That Religious Health Care Refusals Have On Women of Color

Media Contacts:

Liz Boylan: 212.854.0167, eboyla@law.columbia.edu
Kira Shepherd: 212.854.8079, ks3377@columbia.edu

New York, May 23, 2018: Columbia Law School’s Public Rights/Private Conscience Project and the National Women’s Law Center will host a Capitol Hill Briefing at 10:15am, Thursday, May 24th to discuss the impact of religious health care refusals on women of color. The event, entitled Devalued, Turned Away, and Refused Health Care: What Happens to Women of Color When Religion Dictates Patient Carewill be presented in cooperation with Senator Kamala Harris and Representative Bonnie Watson Coleman.

Pregnant women of color, particularly black and Latina women, are at greater risk of being deprived of a range of reproductive health services in many U.S. states as a result of their disproportionate use of Catholic hospitals, according to the report Bearing Faith: The Limits of Catholic Health Care for Women of Color. The report, which was published earlier this year by the Public Rights/Private Conscience Project in partnership with Public Health Solutions, analyzes racial disparities in birth rates at hospitals that place religious restrictions on health care.  The Trump Administration’s consistent efforts to expand religious health care refusals threaten to exacerbate the impact of these refusals on the health and well-being of women of color.

This Thursday’s briefing will include remarks from experts in the field of reproductive justice, racial justice, and public health, including Kira Shepherd, Director of the Racial Justice Program with the Public Rights/Private Conscience Project, Professor Lori Freedman of the University of California, San Francisco; Naomi Washington-Leapheart, Faith Work Director for of the National LGBTQ Task Force; Toni Bond Leonard, a Reproductive Justice expert and Religious Scholar; Candace Gibson, Staff Attorney with the National Health Law Program, and Fatima Goss Graves, President and CEO of the National Women’s Law Center.

This event is free and open to the public and the press. Registration is required, via the National Women’s Law Center at the following URL: https://bit.ly/2L9QQxI.

PRESS RELEASE: New Report Details Consequences of Trump Administration’s Overly Broad Guidance on Religious Liberty

FOR IMMEDIATE RELEASE: April 3, 2018

SUBJECT:
New Report Details Consequences of Trump Administration’s Overly Broad Guidance on Religious Liberty

CONTACTS:
Elizabeth Boylan, 212-854-0167, eboyla@law.columbia.edu
Sam Hananel, 202-478-6327,shananel@americanprogress.org

April 3, 2018, Washington, D.C.  Obama-era rules prohibiting discrimination in dozens of federal programs could be undermined by the Trump administration’s controversial guidance on religious liberty, according to a new report from the Center for American Progress and Columbia Law School’s Public Rights/Private Conscience Project.

The report’s authors identified at least 87 regulations, 16 agency guidance documents, and 55 federal programs and services funded by taxpayer dollars that could be undercut by the October guidance issued by Attorney General Jeff Sessions. These include programs that provide health care, shelter, foreign aid, and assistance to victims of violence as well as veterans.

From unfair treatment to outright exclusion, the Trump administration has misinterpreted religious liberty in a way that harms the fundamental rights of women, LGBTQ people, and religious minorities. Under the new guidance:

  • LGBTQ survivors of domestic violence could be turned away from federally funded domestic violence shelters.
  • Organizations contracting with the government could force any unaccompanied LGBTQ immigrant children in their care into conversion therapy.
  • A government contractor could cite a religious belief as a reason to refuse services without risking the loss of federal funding—for example, not housing LGBTQ youth under federal programs.
  • Hospital workers could refuse to provide emergency contraception to sexual assault survivors by claiming that it conflicts with a religious belief.
  • Clinics abroad that are funded by the U.S. government could refuse to treat LGBTQ people living with HIV.

“This guidance is a deliberate attempt to undermine the legal rights and dignity of LGBTQ people,” said Sharita Gruberg, associate director of the LGBT Research and Communications Project at the Center for American Progress and co-author of the report. “It uses the guise of religious liberty to advance discrimination.”

“Jeff Sessions’ guidance document, which dramatically misinterprets religious exemption law, is already being used to limit access to reproductive health care,” said Elizabeth Reiner Platt, director of the Public Rights/Private Conscience Project and co-author of the report. “As agencies continue to implement it, the guidance threatens to limit enforcement of an enormous range of health, employment, and anti-discrimination protections.”

Religious liberty is a foundational American value. The Trump administration is abusing religious exemptions and disregarding the First Amendment’s prohibitions against the government preferring particular religious viewpoints. This guidance would allow federal officials, service providers, and corporations to use their religious views to infringe on the rights of others.

President Donald Trump’s ideologically motivated appointees are likely to carry out this guidance across the federal government by issuing new rules, reinterpreting existing rules, or reallocating federal funds to faith-based service providers. At the same time, rather than upholding the rights of LGBTQ people and women, Sessions has directed Justice Department lawyers to defend those who would cause harm to third parties.

Read the report: “Liberty and Justice for a Select Few: Jeff Sessions’ Guidance on Religious Liberty Is Promoting Discrimination Across the Federal Government” by Sharita Gruberg, Frank J. Bewkes, Elizabeth Platt, Katherine Franke, and Claire Markham.

For more information or to talk to an expert, please contact Sam Hananel at shananel@americanprogress.org or 202-478-6327, or Liz Boylan at eb2596@columbia.edu or 212-854-0167.

The Public Rights/Private Conscience Project’s 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.  We undertake approaches to the developing law of religion that both respects the importance of religious liberty and recognizes the ways in which too broad an accommodation of these rights threatens Establishment Clause violations and can unsettle a proper balance with other competing fundamental rights.  Our work takes the form of legal research and scholarship, public policy interventions, advocacy support, and academic and media publications.

The Center for American Progress is a nonpartisan research and educational institute dedicated to promoting a strong, just and free America that ensures opportunity for all. We believe that Americans are bound together by a common commitment to these values and we aspire to ensure that our national policies reflect these values. We work to find progressive and pragmatic solutions to significant domestic and international problems and develop policy proposals that foster a government that is “of the people, by the people, and for the people.”

MEDIA ADVISORY: Columbia Law School Scholars Submit Comment on Proposed HHS Rule

SUBJECT: HHS Rule Fails to Protect the Conscience of All Health Care Providers | Proposed Rule Ignores Providers Who Support Reproductive Health Care

FROM: The Public Rights/Private Conscience Project (PRPCP), Columbia Law School

CONTENT: “Not only does this scheme fail to ensure patient health, it also fails to safeguard the very right it claims to defend — the freedom of conscience.”

CONTACTS:
Elizabeth Boylan, 212–854–0167, eboyla@law.columbia.edu
Elizabeth Reiner Platt, 212–854–8079, ep2801@columbia.edu


New York, NY, March 27, 2018 — In medical facilities across the country, doctors whose conscience would require them to perform a sterilization on a patient who requests one, offer truthful information about accessing abortion services, or provide comprehensive LGBTQ+ health care are forbidden from doing so by their employer. The conscience of such medical providers is entirely ignored by the U.S. Department of Health and Human Service’s (HHS) recently proposed rule that purports to “ensure that persons or entities” providing health care “are not subjected to certain practices or policies that violate conscience, coerce, or discriminate.” As explained in a comment submitted today by the Columbia Law School Public Rights/Private Conscience Project (PRPCP), HHS’s proposed rule provides conscience protection only to those whose religious views match those of the administration. The rule is therefore legally suspect.

The HHS rule would enact sweeping protections for medical providers, health care facilities, insurance plans, and even employers who believe that abortion, sterilization, and other healthcare services are morally wrong. In contrast, it provides only extremely limited protections to those whose religious or moral beliefs lead them to offer their patients the full range of sexual and reproductive health care.

There are many such providers; studies and articles have described a wide range of conflicts between physicians who wish to provide reproductive health care to patients, especially emergency care, and faith-based medical facilities that prohibit this care. Furthermore, abortion providers frequently speak of their practice in religious or moral terms. To provide just a few examples, Dr. George Tiller referred to his work providing abortion care as a “ministry.” Dr. Sara Imershein has described providing abortion care as a “mitzvah” and said that “No one should be able to step in the way of what I consider to be my moral obligation.” Dr. LeRory Carhart stated in an interview, “I think what I’m doing is because of God, not in spite of God.”

“Under the proposed rule, a doctor who refuses to provide care that is medically indicated and requested by a patient is protected, while a doctor who does provide this care in accordance with her conscience can be fired,” said Elizabeth Reiner Platt, Director of PRPCP. “Not only does this scheme fail to ensure patient health, it also fails to safeguard the very right it claims to defend — the freedom of conscience.”


The Public Rights/Private Conscience Project

The Public Rights/Private Conscience Project’s 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. We undertake approaches to the developing law of religion that both respects the importance of religious liberty and recognizes the ways in which too broad an accommodation of these rights threatens Establishment Clause violations and can unsettle a proper balance with other competing fundamental rights. Our work takes the form of legal research and scholarship, public policy interventions, advocacy support, and academic and media publications.

To learn more, please visit us at http://www.law.columbia.edu/gender-sexuality/public-rights-private-conscience-project