All posts by Elizabeth Reiner Platt

Anti-discrimination Laws Don’t Burden Religious Freedom—They Secure It

Read our amicus brief for Masterpiece Cakeshop v. Colorado Civil Rights Commission here.

In cases around the country, business owners who are religiously opposed to marriage equality are suing for the right not to provide services like flowers, invitations, and cake to same-sex couples celebrating their wedding. Most notably, the Supreme Court will be deciding Masterpiece Cakeshop v. Colorado Civil Rights Commission this session—a case involving Jack Phillips, a Colorado bakery owner who violated that state’s antidiscrimination law by refusing to make a wedding cake for fiancées Charlie Craig and David Mullins.

These cases are framed specifically to pit LGBTQ rights against religious freedom in a way that is both oversimplified and misleading. Phillips’ brief complains that by requiring him to provide a wedding cake to same-sex couples, the state law provides “broader protection to LGBT consumers than to people of faith.” It’s true that in this circumstance, lower courts held that equality norms should take precedence over a business owner’s religious views. The larger reality, however, is that people of faith (some of whom are, of course, LGBTQ or LGBTQ-affirming) depend on rigorous and universal enforcement of antidiscrimination laws to protect and secure their religious freedom.

Religious freedom protections and antidiscrimination laws typically work together to ensure that people of all faiths are able to coexist in the public sphere. The Supreme Court’s most significant early free exercise cases drew a connection between the protection of religious liberty and principles of non-discrimination, grounding the standard of review for religious liberty claims in the standard honed in equal protection cases.  Even as the Court has adjusted the standard of review in constitutional free exercise cases, it has not abandoned the core equality principle that animated its earlier jurisprudence, retaining strict scrutiny for government action that is non-neutral with respect to particular religious beliefs, and describing it as a “nonpersecution principle.”

Allowing business owners to ignore antidiscrimination laws that conflict with their religious beliefs would threaten grave harms to people of faith, and especially to religious minorities. While federal and state civil rights laws law ban discrimination on the basis of religion, it is nevertheless pervasive. Claims of religiously-motivated discrimination—including the denial of public accommodations, employment, and housing as well as perpetration of hate crimes— have risen dramatically over the past decade. Discrimination is particularly severe for minority religious groups, and especially for Muslims. Over the past year, sixty percent of American Muslims have reported some level of religious discrimination. Over twenty percent of the Equal Employment Opportunity Commission’s (EEOC) charges of religious discrimination in 2015 related to Muslims, despite their representing only one percent of the U.S. population.

If business owners were permitted to ignore antidiscrimination laws based on their personal religious beliefs, they could deny a range of goods and services to members of religious groups that they consider objectionable. For example, they might refuse to cater an interfaith or non-Christian wedding or to sell clothing to Muslim or Jewish women that embrace modesty values, based on a religious objection to their practices. This is not a merely theoretical concern: in recent cases, individuals from a hotel owner to a police officer have voiced religious objections to serving those of other faiths. In fact, Phillips’ own brief acknowledges that he would refuse to provide any goods that “promote atheism.”

Furthermore, any ruling for Masterpiece Cakeshop could not be easily contained to the public accommodations context, but would likely lead to religiously-motivated discrimination in employment and housing. Last year, a federal District Court held in EEOC v. R.G. & G.R. Harris Funeral Homes that a funeral home owner who objected on religious grounds to allowing a transgender woman employee to dress in skirts at work should be entitled to an exemption from federal sex discrimination law. This case is on appeal; however, a ruling for Masterpiece Cakeshop would open the door to similar claims against religious minorities. For example, such a ruling could allow employers to violate employment anti-discrimination law by refusing to hire employees who wear hijabs, turbans, yarmulkes, or other religious clothing. The employer could argue that he believes allowing employees to wear such garb at his workplace amounts to an endorsement of their religious practices, and therefore conflicts with his own religious faith.

Religious liberty and equality in the public sphere are both fundamental American values. In the vast majority of cases, anti-discrimination law protects both religious freedom and equality by ensuring that those of all faiths, including unpopular faiths, are able to work and participate in the public marketplace without facing discrimination from either the government or other citizens. The risks to religious freedom of allowing exemptions from anti-discrimination law would far outweigh any benefit to those with a religious opposition to marriage equality. Such exemptions threaten to decimate the protections for religious minorities that have long offered them some measure of defense from discrimination in their daily lives. As the U.S. becomes more religiously diverse, our commitment to religious plurality has become all the more essential. It should not yield to those who wish to serve, house, or employ only those who share their religious beliefs, on marriage or otherwise.

What’s So Troubling About Funding a Playground? How Trinity Lutheran Undermines the First Amendment

Cross-posted to ReligionDispatches and Medium.

On Monday, the Supreme Court took a dramatically new approach to the First Amendment, though you wouldn’t have known it from reading the brief, oversimplified opinion. In Trinity Lutheran Church of Columbia, Inc. v. Comer the Court held that—at least in some circumstances—the Free Exercise Clause of the First Amendment requires governments to provide taxpayer funds to churches. This newfound requirement is something the dissent argued should, in fact, be prohibited under the First Amendment’s Establishment Clause.

I have previously written about the facts of Trinity Lutheran, as has RD, but they warrant a brief revisiting here. A Missouri state program offered grants for a limited number of nonprofit schools and daycares to purchase rubber playground surfaces made from recycled tires. Prospective grantees were evaluated and selected based on a number of factors, including poverty level of the surrounding area and their willingness to generate media exposure for Missouri. In 2012, Trinity Lutheran, a Missouri Synod congregation, applied for the grant to renovate the playground of a preschool owned and operated by the church. While it ranked highly, Trinity Lutheran was denied the grant because of a department policy that made houses of worship ineligible for funds. Upon learning the reason for their denial, Trinity Lutheran sued, arguing that the department policy violated their religious rights.

Typically, First Amendment cases involving government funding of religious organizations present Establishment Clause questions—with plaintiffs arguing that the state is prohibited from providing taxpayer money to a church. In fact, the Court has long held that it is unconstitutional for governments to directly subsidize religious activities. Trinity Lutheran, in contrast, asked whether the denial of funds to houses of worship may also be unconstitutional.

Shockingly, the court answered in the affirmative, finding that the Missouri policy violated Trinity Lutheran’s free exercise rights by forcing the church to choose between its religious identity and participation in a government benefit program. In an opinion by Chief Justice Roberts, the Court held “the Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character… such a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny.” The Court further held that Missouri’s stated reason for the policy—to avoid potential Establishment Clause violations—was insufficient.

The Court’s opinion stands in stark opposition to earlier religious funding decisions, and especially its 2004 opinion in Locke v. Davey. In Locke, the Court upheld a state scholarship program that prohibited recipients from using the funds to pursue a degree in devotional theology. The Court attempted to distinguish Trinity Lutheran from Locke by relying on a distinction between religious identity and religious activities. It explained, “Davey was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do—use the funds to prepare for the ministry. Here there is no question that Trinity Lutheran was denied a grant simply because of what it is—a church.”

How government agencies administering grant programs are expected to distinguish between a house of worship’s religious identity and its religious activities is a spectacularly difficult (if not impossible) task that’s entirely ignored by the Court. Making such a distinction is now constitutionally essential, however, as programs must navigate between not funding religious activities, lest they violate the Establishment Clause, and not “discriminating” against religious institutions, lest they violate the Free Exercise Clause. Previously, state programs could safely avoid such perilous questions by simply declining to fund houses of worship. Trinity Lutheran throws such policies into question—although the scope of the ruling is unclear. (More on that later.)

Both Justice Gorsuch in concurrence and Justice Sotomayor in dissent criticized the majority’s attempt to create a line between religious identity and activities, though they ultimately arrive at opposing conclusions. Gorsuch asked, “Can it really matter whether the restriction in Locke was phrased in terms of use instead of status (for was it a student who wanted a vocational degree in religion? Or was it a religious student who wanted the necessary education for his chosen vocation?).”

Similarly, in her Trinity Lutheran dissent, Sotomayor wrote, “the Church has a religious mission, one that it pursues through the [preschool]. The playground surface cannot be confined to secular use any more than lumber used to frame the Church’s walls, glass stained and used to form its windows, or nails used to build its altar.” But while Gorsuch’s opinion suggests that he would support even direct state subsidization of religious activities, Sotomayor argued that directly subsidizing a house of worship—even for ostensibly non-religious expenses such as playground surfaces—is proscribed by the Establishment Clause.

It’s notable that the Court has previously declined to require religious organizations to distinguish between their religious and secular activities. A 1987 decision, Corporation of the Presiding Bishop v. Amos, involved an Establishment Clause challenge to a religious exemption that permitted religious organizations to hire employees based on their faith, even for secular jobs such as janitorial work. The plaintiff in that case argued that while the exemption was justified for employees with religious duties, it was unconstitutional when applied to employees with purely secular jobs.

The Court disagreed, finding that creating such a constitutional line would be untenable. It held, “It is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious. The line is hardly a bright one.” Thus, the Amos Court declined to adopt a constitutional bright line between religious and secular activities in order to grant religious organizations advantageous exemptions. However in Trinity Lutheran, it relies on precisely such a distinction in order to permit (indeed, require) state funding of houses of worship.

As a more general matter, it is suspect that the majority opinion decries treating houses of worship as different from secular organizations, when the Court has repeatedly relied on this difference to grant exemptions to faith-based organizations that are unavailable to secular nonprofits. As Justice Sotomayor explains, “the government may draw lines on the basis of religious status to grant a benefit to religious persons or entities but it may not draw lines on that basis when doing so would further the interests the Religion Clauses protect in other ways. Nothing supports this lopsided outcome.”

The only saving grace (so to speak) of the opinion is buried in a footnote, though how lower courts will interpret both its weight and substance is unclear. The footnote states, “this case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” Two of the six justices who signed the majority opinion—Gorsuch and Thomas—dissented from the footnote, though Justice Breyer, who concurred only in the judgment, appears to support it.

More importantly, it’s far from clear how literally to interpret the footnote’s apparent attempt to confine the decision exclusively to programs involving playground resurfacing. Justice Gorsuch explained in his concurrence that lower courts might (in his view, mistakenly,) “read it to suggest that only ‘playground resurfacing’ cases, or only those with some association with children’s safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in . . . the Court’s opinion.” While this narrow reading of the case would limit the damage it inflicts on the Establishment Clause, it seems likely that at least some courts will interpret the decision far more broadly, and sanction a variety of programs providing direct funding to houses of worship.

Regardless of how the footnote is interpreted, the Court’s opinion in Trinity Lutheran demonstrates a fundamental misunderstanding of the purpose of the religion clauses, and effectively ignores the danger of using public coffers to subsidize houses of worship.  The majority describes this as a case about religious discrimination, which demonstrates how successful the religious right has been at rebranding nearly any attempt to enforce the Establishment Clause as a form of religious persecution. Declining to divert public money to churches has long been considered necessary to protect the individual right of conscience of the citizenry. Far from being discriminatory, separation of church and state is intended to ensure that individuals may choose to adhere to any or no religious beliefs free from coercion, and that the church itself is protected from government intrusion. The majority opinion ignores the long history of and important justifications for prohibiting state subsidization of houses of worship. Hopefully, its damage will be confined to the unusually sympathetic facts of this case.

“Religious Liberty” Executive Order Will Limit, Not Enhance, Religious Freedom

May 4, 2017 Today, President Trump signed an executive order that creates many more questions than answers about how the federal government intends to “protect the freedom of Americans and their organizations to exercise religion and participate fully in civic life.” Several of its provisions raise serious cause for concern.

The order—unlike a prior leaked draft—does not single out for special protection particular religious beliefs about sex, marriage, or reproduction. Nevertheless, it still opens the door to agency under-enforcement of federal laws in ways that will harm, not enhance, religious liberty. In particular, Section 4 of the order, entitled “Religious Liberty Guidance,” directs the Attorney General to issue guidance on “interpreting religious liberty protections in Federal law” to all federal agencies. This provision instructs Attorney General Jeff Sessions to interpret religious exemption laws, like the Religious Freedom Restoration Act (RFRA), in ways that may cause significant harm to vulnerable communities.

For example, Sessions could attempt to limit government enforcement of the Family and Medical Leave Act, the Civil Rights Act, the Fair Housing Act, or the Fair Labor Standards Act if he determines that enforcement will burden an individual’s or corporation’s religious liberty in violation of RFRA—even if a court would be unlikely to construe RFRA so broadly. More specifically, he could interpret RFRA to provide an exemption from Title VII of the Civil Right Act to employers who believe they have a religious obligation to proselytize to their non-Christian employees. If RFRA is interpreted by agencies to allow employers, landlords, healthcare providers and others to impose their religious beliefs on other individuals, this will significantly burden religious minorities who may find themselves shut out from participation in civic life.

While this order doesn’t require Attorney General Sessions to interpret RFRA and other exemptions in any particular way, we know that he has supported using ‘religious liberty’ as a tool to advance particular conservative beliefs while harming vulnerable communities—a position that many in Trump’s cabinet share. Furthermore, he has expressed hostility to religious minorities. While in the Senate, he voted against a proposed amendment that opposed placing a religious test on those entering the country, and he has called Islam a “toxic ideology.”

In the coming days and weeks, we will continue to update our analysis. Follow PRPCP’s policy page and blog for all of our most up to date information.

Because You’re Not Fooling Anyone: Why Trump Travel Ban 2.0 Still Unconstitutional

Cross-posted with Religion Dispatches, and on Medium, March 14, 2017

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.

In 2005, the Supreme Court issued two decisions on the question of whether displaying the Ten Commandments in or near a courthouse violated the Establishment Clause of the First Amendment. The cases came out split, with one display upheld and the other held unconstitutional. The takeaway? Context and history matter.

These decisions serve as helpful background for why a quick fix to Trump’s Executive Order on Immigration doesn’t resolve all the EO’s constitutional problems.

In one of the cases, McCreary County v. ACLU, the displays at issue were the third in a series of exhibits that had been repeatedly challenged as unconstitutional. The first displays—installed in two Kentucky county courthouses—were large, gold-framed copies of the Ten Commandments, with a citation to the Book of Exodus. In response to a suit by the ACLU, the counties expanded the displays to include additional documents in smaller frames, each with a religious theme, including the “endowed by their Creator” passage from the Declaration of Independence and the national motto, “In God We Trust.”

When a District Court preliminarily enjoined both the original and the expanded displays, the counties installed a third version, this time consisting of nine framed documents including the Ten Commandments, Magna Carta, Declaration of Independence, and Bill of Rights. In explaining its decision to strike down even this seemingly acceptable display, the Supreme Court noted: “the purpose apparent from government action can have an impact more significant than the result expressly decreed” (emphasis added).

In other words, the counties weren’t fooling anyone.

In order to be upheld under the Establishment Clause, a government action must have a valid secular purpose. While courts typically give deference to the secular intent proffered by legislatures, the purpose has to be “genuine, not a sham.” In this case, it was obvious to the Court that the counties’ intent in creating the third round of displays was no different than their intent for the original display: they “were simply reaching for any way to keep a religious document on the walls of courthouses constitutionally required to embody religious neutrality.”

In contrast, the Court in Van Orden v. Perry held that it was permissible for Texas to accept and display a Ten Commandments statue donated by a civic organization on the state capitol grounds, alongside 17 other monuments and 22 historical markers. In this case, there was no history indicating a legislative intent to endorse or advance religion.

The history of Trump’s two Executive Orders recalls the counties’ efforts in McCreary to water down a religious display simply to meet legal approval, without changing its underlying intent. In the years leading up to the EO, President Trump repeatedly pledged to ban Muslims from entering the country. (He also made comments supporting Muslim profiling, the creation of a Muslim registry, and the closure of mosques.) Trump sometimes varied his language, calling his plan “extreme vetting” or emphasizing its application to “terror nations” rather than Muslim-majority nations.

After the issuance of the first order, however, Trump advisor Rudy Giuliani openly admitted that the President intended to craft a Muslim ban that would withstand judicial scrutiny. When the ban was enjoined, Trump stated in a press conference that the administration could “tailor the [new] order to that decision and get just about everything, in some ways more.” White House advisor, Stephen Miller, also stated that the new EO contained “mostly minor, technical differences,” and would “have the same, basic policy outcome for the country.”

Thus, despite the elimination of the explicit religious preference, there’s no indication that the new order should be treated any differently from the last one when it comes to determining whether the administration had a valid, secular, non-discriminatory purpose in issuing the EO.

This is certainly not to say that Trump can never pass a law on immigration or national security that won’t violate the Establishment Clause. The McCreary Court explained that it did not hold that the counties’ “past actions forever taint any effort on their part to deal with the subject matter.” However it does mean that Trump cannot avoid the ample and longstanding evidence that his EO is intended to be a Muslim ban simply by removing the language that most clearly identifies it as one.

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.

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

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

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

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

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

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

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

by Kira Shepherd

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

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

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

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

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

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

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

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

Supreme Court Gives Itself an Exemption from Deciding Zubik

Yesterday, the Supreme Court issued a bewildering non-decision in one of the year’s most important cases, Zubik v. Burwell. After granting cert in and consolidating seven cases, receiving at least seventy amicus briefs in addition to those filed by the parties, hearing oral argument, and requesting additional briefing, the Supreme Court has finally decided…. not to decide.SCOTUS

Zubik involves a challenge by nonprofit religious organizations to a requirement of the Affordable Care Act (ACA) that contraceptive coverage be included within most employee and student health insurance plans. The nonprofits argue that the ACA’s existing religious accommodation—which allows organizations to opt out of providing contraceptive coverage themselves, but ensures that this coverage is seamlessly provided by a health plans’ insurance company—itself violates the nonprofits’ religious rights under the Religious Freedom Restoration Act (RFRA). The plaintiffs lost nearly all of their challenges at the circuit court level, but SCOTUS’s unanimous order yesterday vacating those decisions and remanding the suits back down gives the nonprofits another chance to demand an even broader accommodation.

In declining to issue a substantive legal opinion, the Court stated that the parties should be “afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’” It’s difficult to fathom what such an approach would look like at this point, but that’s hardly the worst part of the Court’s order. What is far more problematic is the absolute lack of guidance it provides to lower courts at a time when the scope and meaning of RFRA is hotly contested.

Not only do significant differences between the parties remain within the current dispute, but yet another RFRA challenge to the contraceptive mandate is currently being litigated at the district court level. This challenge was brought by an individual health care consumer who argues that participating in a health insurance plan that includes coverage for contraceptives violates his sincerely-held religious beliefs. Such a claim stretches RFRA’s protections far beyond their breaking point, yet the Supreme Court has utterly declined to provide an analysis that might guide the district court in adjudicating this and other RFRA claims.

In addition, the Court’s order ignores the basic structure of the RFRA test. The Act states that the federal government may not substantially burden the sincere exercise of religion unless it is the least restrictive means of furthering a compelling governmental interest. While the precise meaning of nearly every element of the RFRA test is under-theorized, the basic structure of the test is clear—no accommodation is necessary unless there is a substantial burden on sincere religious exercise. In defiance of this threshold test, the Court’s order essentially asks the government to agree to provide a “less restrictive” alternative to the nonprofits without clearly holding that their religious liberty has been burdened in the first instance.

In its opinion, the Court specifically notes that it “does not decide whether petitioners’ religious exercise has been substantially burdened.” Nevertheless, it suggests that the government’s procedures “could be modified” so as to be acceptable to the nonprofits. This subverts the RFRA test, and could encourage the government in this and future cases to provide religious organizations with exemptions that far exceed what is required by law, and that substantially harm third parties.

Apparently, the Zubik plaintiffs aren’t the only ones who want an exemption from their legal responsibilities. In its order, SCOTUS has exempted itself from its obligation to issue a substantive decision on the case before it. To be fair, the order was likely issued in order to avoid a four-four split by the Court. Thus the real blame may be laid on yet another exemption— Congress’s attempt to exempt itself from its obligation to hold a hearing for Supreme Court nominee Merrick Garland. Until there is a ninth justice on the court, we may have to prepare for a confounding year of Constitutional remands, punts, and ties.

Religious Accommodations Try to Turn Back the Clock

Yesterday, PRPCP Associate Director Liz Reiner Platt published an article on Rewire examining how proposed religious exemption laws could renew religious opposition to desegregation.

Although the U.S. Supreme Court called an attempt to discriminate based on a religious belief “patently frivolous” in one 1968 case, the proliferation of such laws today jeopardizes anti-discrimination efforts on multiple fronts nationwide.

Read the full article here.