All posts by Elizabeth Reiner Platt

States Attempting to Preempt LGBT-Friendly Municipalities

As legislators across the country duke it out over a huge variety of proposed “religious freedom” (aka “right to discriminate”) bills, some municipalities are going in the opposite direction. In 2015, cities and counties from Anchorage to Little Rock to Sedona, Arizona made efforts to protect their LGBT residents by passing local ordinances that ban LGBT discrimination in some contexts.

In Georgia, where at least four bills have been introduced that would create religious exemptions from providing services to LGBT people, the city of Athens just passed a resolution asking the city manager to make recommendations on how to curb LGBT and race discrimination in local bars. In West Virginia, where a state RFRA passed the House Judiciary Committee last week, mayors in cities with LGBT antidiscrimination statutes are speaking out against the bill, and the Lewisburg city council recently approved a bill to add sexual orientation and gender identity protections to the city’s human rights ordinance. Since Indiana’s RFRA debacle last year, a handful of municipalities have stepped up to pass antidiscrimination laws that protect LGBT Hoosiers. And in Florida, where a sweeping religious exemption bill has been introduced, Jacksonville is moving forward with a proposed antidiscrimination ordinance.

Opponents of LGBT rights aren’t letting these ordinances go unchallenged. Conservative legislators are turning to preemption bills[1] as a way to overturn existing, and prevent future, LGBT antidiscrimination ordinances. Over the past year, legislators have introduced bills in Michigan, Texas, West Virginia, Missouri, Indiana, and North Carolina that would have preempted local efforts to pass antidiscrimination protections. Thankfully none of these were successful, although a preemption bill was signed into law in Arkansas last year, and Tennessee passed an antidiscrimination preemption law in 2011. Preemption bills are currently pending in Oklahoma and Virginia, and more may pop up as state legislative sessions continue.

While many preemption bills do not explicitly mention religion, they are often introduced alongside religious exemption laws, supported by religious organizations, and justified in religious terms. For example, Tennessee’s preemption law, the “Equal Access to Intrastate Commerce Act,” was passed with strong support from religious groups including the Family Action Council of Tennessee, Southern Baptist Ethics & Religious Liberty Commission, and Tennessee Baptist Convention. In Arkansas, a preemption bill was sponsored by the same legislators as a proposed state RFRA, and was promoted by a third legislator, Mary Bentley, as essential for religious freedom. Benley explained, “I don’t think…a baker that loves the word of God that’s bringing her children up to honor God and to worship God should have her business destroyed because she doesn’t want to bake a cake for somebody that’s a transgender trying to marry somebody else.” And during a Texas “Emergency Pastor Briefing” that followed the passage of a LGBT antidiscrimination law in Plano, State Representative Matt Shaheen told the assembled pastors that legislation was “being worked on” to resist the local ordinance. Shaheen and fellow Plano Representative Jeff Leach subsequently introduced a preemption bill, ostensibly to create consistency around statewide antidiscrimination provisions.

Other attempts to preempt local LGBT protections are included as part of a religious accommodation bill, such as Indiana’s pre-“fix” RFRA (although this merely subjected claims under local antidiscrimination ordinances to a RFRA analysis rather than preempting them entirely). Thus preemption laws are yet another example of the use of “religious freedom” as a sword rather than a shield. In the name of religious liberty, some states are trying not just to protect religious businesses from any requirement that they treat LGBT customers fairly—they go much farther by attempting to restrict the creation of any protections for LGBT people.

Preemption bills have long been a favored tactic of gun rights groups, as well as big businesses that wish to limit the regulation of e-cigarettes, food (think: NYC’s calorie posting and Bloomberg’s defeated soda “ban”), factory farms, and other health and environmental dangers. In recent years, preemption bills have increasingly been adopted to curtail local minimum wage increases, paid sick leave laws, and other labor protections. The tobacco industry used preemption bills to great effect in the 1980s and 90s. Bills often imposed weak regulations on tobacco use, which were either expressly or implicitly intended to establish a comprehensive regulatory scheme preempting any local attempts to pass more stringent regulations. This wolf-in-sheep’s-clothing approach is similar to that used in Indiana’s (recently-killed) SB 344, which would have totally preempted the passage of any new LGBT antidiscrimination ordinances as part of a weak and exemption-riddled state antidiscrimination law.

Lawyers and advocates should keep a keen eye out for any preemption laws introduced this session… including ones that are disguised as watered-down and exemption-rife antidiscrimination laws. While these bills may be promoted as efforts to create consistency and ease administrative burdens on statewide businesses, many anti-LGBT preemption bills are in fact back-door methods of imposing the values and beliefs of the religious far-right onto states and cities that are more welcoming of their LGBT populations.

[1] State preemption is the complex (and, let’s face it—somewhat dry) legal doctrine governing interactions between state and local law. For those interested, preemption expert Paul Diller has published a thorough analysis of the various schemes that states have adopted to balance state and municipal power. For the rest of us, suffice it to say that in a majority of states, at least some cities and counties are able to pass a wide variety of legislation, so long as this legislation does not conflict with the state’s constitution and laws. Courts have employed a variety of tests to determine when such a conflict exists, but are unlikely uphold an ordinance in the face of a state law that expressly limits local power within the relevant field.

Indiana Orgs Demand Right to Discriminate (Under the Equal Protection Clause!)

Unless you haven’t read the news in quite a while (in which case… are you in for a surprise!) you know that Indiana has been on a RFRA roller coaster for nearly a year.

To summarize: in expectation of the Obergefell decision, Indiana passed a broad “religious freedom” law that would have allowed individuals and companies to assert a religious rights defense to claims of LGBT discrimination. The state faced a PR firestorm and immediately passed a “fix”  explaining that statute could not be used to discriminate. Of course Indiana never had state LGBT antidiscrimination protections in the first place, so the “fix” was essentially meaningless except when it came to municipalities that included protections for LGBT people in their antidiscrimination ordinances. The state is now in the midst of RFRA battle round two, with legislators introducing a handful of assorted religious liberty and LGBT rights bills that have, thus far, been killed. However three anti-LGBT religious groups aren’t waiting to see what happens this session: they’ve already filed a complaint arguing that municipal LGBT protections, and last year’s RFRA “fix,” are unconstitutional violations of their religious liberty.

The complaint alleges that the RFRA “fix” and local ordinances are violations of the state and U.S. constitutions including the substantive due process clause, establishment clause, free exercise clause, freedom of speech, freedom of association, and—ironically— the equal protection clause.

Courts have overwhelmingly rejected the argument that religious freedom protections give one a “right to discriminate” against LGBT customers or employees, often looking to earlier race discrimination cases for guidance. For example, the idea that the free exercise clause provides a right to discriminate was deemed “patently frivolous” by the Supreme Court in 1968’s Newman v. Piggie Park. Even if strict scrutiny is applied, the Court’s opinion in Bob Jones University v. United States found that the government’s interest in preventing discrimination outweighed any religious burden this imposed.

The Indiana lawsuit seems to hang its hat on the fact that the amended RFRA treats different religious actors differently—clergy members and churches are still exempt from nondiscrimination provisions while other individuals and corporations are not. The plaintiffs claim that the government has no compelling interest in allowing exemptions for some, but not all, religious groups. This argument is similar to the one being put forth in the upcoming Supreme Court case Zubik v. Burwell, which challenges the validity of providing one type of religious exemption from the ACA’s contraceptive coverage requirement to churches, and a different type of exemption to religious nonprofits.

The argument that anyone with a religious belief—from a Rabbi to a multinational corporation—should be given an equal license to discriminate is (to borrow language from the Court) patently frivolous, and ignores the enormous differences in the societal roles these parties play as well as the enormously variant risks of regulating their actions. The Supreme Court has already done significant damage to equality rights in its Hobby Lobby decision by holding that for-profit entities can exercise religion. It should not further weight the scales in favor of the right to discriminate by limiting the ability of the government to make rational distinctions between churches and less pervasively religious institutions.

Religion is not a free pass to ignore antidiscrimination legislation, as the Supreme Court has repeatedly held. Certain exceedingly narrow exceptions have historically been given to churches and clergy due to their distinct role in American society and culture. However applying these exceptions to, say, your local cupcake shop (or even worse, your local clinic) turns the government’s message of equality on its head: changing the robust guarantee of “LGBT citizens have equal rights” to the anemic “LGBT citizens have equal rights… unless you think they don’t.”

Clergy Members File RFRA Brief in Support of Syrian Refugees

In a brief that evokes the sanctuary movement of the 1980s, religious leaders in Texas recently filed an amicus brief in support of a nonprofit organization’s efforts to resettle Syrian refugees. The brief is part of a small but growing trend of using statutory and constitutional religious liberty protections—which have been used to great effect by the religious right— to advance progressive causes.

Since filing suit in early December, the state of Texas been embroiled in a complicated and politically charged legal battle with the U.S. government about the resettlement of refugees within its borders. In its original complaint, the Texas Health and Human Services Commission argued that the government had resettled refugees “without consulting with Texas or working in close cooperation with the Commission” in violation of the Refugee Act of 1980. The suit additionally claimed that the nonprofit International Rescue Committee (IRC), which provides aid to refugees, had broken contracts with the State. Among other relief, it requested an injunction preventing the resettlement of Syrian refugees until the court found that the government and IRC complied “with their statutory and contractual duties to consult with Texas in advance of placing refugees and to provide information to the Commission and work in close cooperation with the Commission.”

The amicus brief, signed by Christian, Jewish, and Unitarian clergy members, argues that Texas’ efforts to stymie the resettlement of refugees based on their national origin “threatens religious freedom in Texas.” Citing the religious liberty protections of the First Amendment, the federal Religious Freedom Restoration Act (RFRA), and Texas’ Religious Freedom Restoration Act (TRFRA), the brief argues that the “State’s actions against local resettlement agencies potentially affect the ability of many religious Texans to live out and enact [their] beliefs,” including their “sincere calling to provide charitable and humanitarian aid to refugees.”

It’s a somewhat strange argument, considering that the amici are not asking for an exemption from any state or federal law that currently restricts them. Rather, they are claiming that Texas is violating their religious rights by filing a lawsuit that does not involve them at all. Nevertheless, it’s worth taking a closer look at the brief, as similar arguments could be made in the future to request exemptions from federal immigration laws.

Under both RFRA and TRFRA, the government cannot substantially burden the free exercise of religion unless it is the least restrictive means of furthering a compelling government interest. Although the brief mentions both statutes, it challenges only state actions and therefore only the latter law should apply. Texas courts have historically looked to how RFRA has been interpreted, however, in interpreting TRFRA.[1]

Texas courts analyze TRFRA using a four-part test, asking: (1) whether the government’s regulations burden the plaintiff’s free exercise of religion; (2) whether the burden is substantial; (3) whether the regulations further a compelling governmental interest; and (4) whether the regulations are the least restrictive means of furthering that interest.[2]

Looking to the first question, the amicus brief states that it “cannot seriously be doubted that the sincere calling to provide charitable and humanitarian aid to refugees constitutes free exercise of religion.” This claim is supported by the Supreme Court’s recent opinion in Hobby Lobby, which deferred entirely—and problematically— to the Plaintiffs’ definition of what constitutes religious exercise. Federal courts have been extremely reticent to take a deeper look at the definition and scope of “religious exercise,” leading to a dearth of theory and guidance on this issue. And while a few Texas cases interpreting TRFRA have looked more deeply into the definition of religious exercise,[3] other cases have followed federal courts’ broad and deferential view.[4] On the other hand, while providing aid may constitute religious exercise, it’s not clear that the federal government’s statutory process for accepting or rejecting refugees implicates the amici’s exercise of religion at all.

The brief’s argument on the second TRFRA question— whether any burden placed on their religious exercise is substantial— is far less convincing. The amici argue that the State’s actions burden religious practice by hindering the ability of religious nonprofits to provide aid, and by requiring agencies to “discriminate against certain refugees solely because they were born in Syria,” which is “repugnant to the religious beliefs of many people of faith, including amici.”[5] While religious organizations may have a right to provide services to refugees in a nondiscriminatory manner, this right is not substantially burdened by Texas’ efforts to force the federal government to comply with its own immigration law, or to enforce contracts the state signed with IRC. The court may well find that neither the federal government nor the IRC breached any law or contract with Texas. However the amici’s religious practice is not curtailed, and there is no impact on their religious expression, by the state’s actions in alleging this misconduct. Amici may have a right to provide aid to Syrian refugees, but nonprofits don’t have a right to make the government deliver Syrian refugees to them.

The brief sums up its argument on the third TRFRA question in one sentence: “Texas’s amorphous claim of a security interest in excluding Syrian refugees from Texas does not approach the compelling government interest necessary to support impinging on the religious freedom of faith-based charities.” Arguing that there is no compelling interest, it does not address the fourth question regarding whether the state’s actions are the least restrictive means of furthering its interest.

It’s hard to extrapolate to future RFRA claims based on this case, as RFRA demands that courts ask whether or not there is a compelling interest in applying the challenged law to the petitioners specifically. In this case, Texas’ suit against IRC and the federal government does not involve the amici at all. Nevertheless it seems safe to say that the government will at least sometimes be able to demonstrate a compelling interest in enforcing its immigration laws on everyone, including religious persons and organizations.

Texas’ suit has been a long shot from the beginning, so the amicus brief is unlikely to be a deciding factor in the court’s ultimate decision. Nevertheless, the brief may spark the imagination of other pro-immigrant rights religious leaders to speak out when “[p]eople of faith feel trapped” between the “State’s [actions] and their religious calling to care for the needy and downtrodden.” While this is a noble goal, the amici’s argument could create risky precedent if successful. If RFRA requires the government to bring Syrian refugees to Texas, it could open the door to demands by groups across the political spectrum for government assistance in carrying out their own religious missions. This goes far beyond the intended and appropriate scope of RFRA.

[1] See, McFaul v. Valenzuela, 684 F.3d 564, 576 (5th Cir. 2012) (“Claims under TRFRA may be resolved by consideration of case law applying RLUIPA and its predecessor, the Religious Freedom Restoration Act of 1993.”); A.A. ex rel. Betenbaugh v. Needville Indep. School Dist.; 611 F.3d 248, 259 (5th Cir. 2010) (“Because TRFRA and its federal cousins—RFRA and RLUIPA—were all enacted in response to Smith and were animated in their common history, language and purpose by the same spirit of religious freedom, Texas courts consider decisions applying the federal statutes germane in applying the Texas statute”) (internal citations omitted).

[2] See, e.g., Merced v. Kasson, 577 F.3d 578, 588 (5th Cir. 2009).

[3] See, e.g., Emack. V. State, 354 S.W.3d 828, 839 (Tx. Ct. App. 2011) (Appellant does not point to evidence that would support a finding that the searches conducted … curtailed his ability to express adherence to his faith through a particular religiously motivated act…); McFaul v. Valenzuela, 684 F.3d at 576-77.

[4] For example, a 2011 opinion held that a jury could conclude that the religious exercise of church groups encompassed not just the right to feed the homeless at all, but to “spontaneously share food with homeless people or to actively seek them out in hard to reach, unpredictable, and ever-changing locations.” See, Big Hart Ministries Ass’n Inc. v. City of Dallas, 2011 WL 5346109 at *4 (N.D. Tex. 2011).

[5] Texas doctrine on what constitutes a “substantial” burden is somewhat muddled, but has been described as a burden that is “real vs. merely perceived, and significant vs. trivial,” with courts focusing on the “degree to which a person’s religious conduct is curtailed and the resulting impact on his religious expression.” See, Merced v. Kasson, 577 F.3d at 588-89.

Playing In the Joints—Supreme Court to Hear Trinity Lutheran

Last Friday, the Supreme Court agreed to hear a case that could narrow the “play in the joints” between the requirements of the Free Exercise Clause and the prohibitions of the Establishment Clause. For years, the Supreme Court has acknowledged some room for state decision-making in allowing or restricting grants to religious actors in ways that neither violate the Establishment Clause by supporting religion nor violate the Free Exercise Clause by discriminating against religion. Now, a Lutheran preschool is asking the Supreme Court to restrict this “play in the joints” by limiting states’ ability to deny funds to religious institutions.

On appeal from the 8th Circuit, Trinity Lutheran Church of Columbia v. Pauley involves a program administered by the Missouri Department of Natural Resources (DNR), which provides funds for the purchase of recycled tires to resurface playgrounds. In 2012, Trinity

play-station-a-1534328 W. Cook

Lutheran Church applied for a DNR grant to replace the playground surface for the Learning Center, a private preschool and daycare operated by the church on church premises. DNR denied the grant citing Article I, § 7 of the Missouri Constitution, which states “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion.” Such provisions limiting aid to religious institutions, sometimes called “Blaine Amendments,” exist in the majority of state constitutions.

Trinity sued DNR, claiming that the agency’s denial of funds violated the Equal Protection Clause of the Fourteenth Amendment and the Free Exercise and Establishment Clauses of the First Amendment. In response, DNR filed a Motion to Dismiss, arguing that the agency’s actions were both required by the Missouri Constitution and permissible under the Federal Constitution.

Trinity’s complaint was careful to frame the issue as an as-applied challenge of the DNR’s actions, rather than a facial challenge to the state Constitution’s limits on religious funding. Nevertheless the Eight Circuit held that their claims were “plainly facial attacks on Article I, § 7,” and a Supreme Court decision on this matter could clearly threaten the administrability, if not the constitutionality, of Blaine amendments generally.

In defending its actions, Missouri could have argued that providing funds to Trinity would have violated the Establishment Clause, and that Trinity’s exclusion from the grant program was therefore not just acceptable but constitutionally mandated. Instead DNR took a more moderate position. It filed a Motion to Dismiss arguing that the denial of funds did not restrict Trinity’s practice of religion, and therefore could not constitute either a free exercise violation or religious discrimination. Furthermore, it stated that there was no precedent to construe the Establishment Clause’s “negative prohibition [on establishment of religion] as a basis for extending the right of a religiously affiliated group to secure state subsidies.”

The District Court granted DNR’s Motion to Dismiss, and the Eighth Circuit affirmed. Even though the question of whether awarding a grant to Trinity would have violated the Establishment Clause was not briefed, the Eighth Circuit commented in passing that it was “rather clear” under current Supreme Court precedent that Missouri could have provided such funds. However it held that Missouri was not compelled to do so under current First Amendment doctrine as “[n]o Supreme Court case… has granted such relief,” and it was not the place of a lower court to make such a “constitutional leap.”

Now that the Supreme Court has accepted the appeal, SCOTUS might be more than willing to make the leap.

The Supreme Court’s decision will turn in large part or how broadly or narrowly it construes its decision Locke v. Davey, a 2004 case that upheld Washington State’s denial of scholarship aid to students perusing a degree in devotional theology. Trinity argues that the Locke opinion should be read narrowly, and hinged on specific circumstances of the case including that the funds would have been used for an essentially religious endeavor and the exclusionary policy was not linked to a Blaine Amendment (which Trinity argues is rooted in anti-Catholic prejudice and therefore constitutionally suspect). DNR argues that Locke should control, and that the agency is not required to provide a direct grant of funds to Trinity.

The briefs aren’t even in yet so there’s only so much one can predict at this point. But this is sure to be a complex and interesting case that has the possibility of provoking as many constitutional questions as it answers.


Atheist Challenges “In God We Trust”… Again

This week, Atheist activist and attorney Michael Newdow filed a federal complaint challenging the inclusion of “In God We Trust” on U.S. currency. After losing several similar cases over the past decade brought under the Establishment Clause, Free Exercise Clause, and Religious Freedom Restoration Act (RFRA) Newdow is trying again— this time on behalf of over forty plaintiffs, including two Atheist organizations.

As a preliminary matter, it may seem odd that Atheists are bringing a claim under dollar-463380_1920Constitutional and statutory protections intended to safeguard religious belief. The Supreme Court, however, has repeatedly found that Atheists and other non-believers have First Amendment religious freedom protections. And while the question of whether Atheists are covered by RFRA has not been decisively litigated by the Supreme Court, lower courts have taken their claims seriously. The only evidence that Atheists are not protected by the statute is a quote from Justice Stevens’ concurrence in City of Boerne v. Flores, which says RFRA “has provided the Church with a legal weapon that no atheist or agnostic can obtain.” This is mere dicta, however, and has not prevented lower courts from applying RFRA protections to Atheists.

Under RFRA, the federal government may not substantially burden a person’s exercise of religion unless 1) it acts is in furtherance of a compelling governmental interest; and 2) application of the religious burden is the least restrictive means of furthering that interest. Newdow’s complaint argues that by placing “In God We Trust” on the nation’s currency, the government has substantially burdened the plaintiffs’ exercise of religion “by requiring them – as the price to pay for using the nation’s coins and currency bills – to personally bear a religious message that is the antithesis of what they consider to be religious truth” and to “proselytize for a religious claim that is completely contrary to their personal religious opinions.” Additionally, Newdow claims the government required plaintiffs “to engage in activity that they believe furthers the anti-Atheist religious prejudices that pervade this nation’s society.” He argues that the government has “no compelling interest to justify these burdens.”

In Newdow’s past cases, courts have rejected his claim that the inclusion of “In God We Trust” on U.S. currency poses a substantial burden on the exercise of Atheism. The Ninth Circuit wrote that the harms imposed on Newdow by the motto rested on an incorrect premise, that “the motto represents a purely religious dogma and constitutes a government endorsement of religion.” In fact, the court explained that the motto was merely “patriotic or ceremonial” rather than theistic, and therefore it could not be a “substantial burden” on Newdow’s exercise of Atheism. In a later case, the Second Circuit found that there was no substantial burden on plaintiffs’ exercise of religion because “the carrying of currency, which is fungible and not publicly displayed, does not implicate concerns that its bearer will be forced to proclaim a viewpoint contrary to his own.”

Both circuit court opinions essentially argue that Atheists should not feel substantially burdened by the presence of “In God We Trust” on currency, either because the motto is not actually religious or because carrying a religious motto in their pocket does not violate Atheist beliefs. This method of reasoning was soundly rejected by the Supreme Court in Burwell v. Hobby Lobby. In that case, the government tried to argue that requiring Christian companies to provide contraceptive coverage in their insurance plans was not a substantial burden, because the action being imposed was too attenuated from their religious belief that abortion is morally wrong. The Court held that this was not the correct way to asses a substantial burden, as this was a question of theology rather than law. It explained that “federal courts have no business addressing” the question of “whether the religious belief asserted in a RFRA case is reasonable,” but should rather ask whether the government is coercing the plaintiff to violate his or her belief.

Newdow pointed this out in his Petition for a Writ of Certiorari to the Supreme Court in the Second Circuit case in 2014, months after Hobby Lobby was decided. The Court however, declined to take the case. And, interestingly, Newdow did not cite to Hobby Lobby in his latest petition challenging “In God We Trust.”

There is much to be critiqued about Hobby Lobby’s “substantial burden” analysis, including that it instructs courts to defer not only to a petitioner’s personal religious beliefs, but to his or her own facts. But what’s good for the goose should be good for the gander— and if Newdow and other plaintiffs’ claim that using money imprinted with “In God We Trust” violates their deeply-held beliefs, it is not clear why courts should be able to second-guess them.

It seems extremely unlikely that Newdow’s latest attempt will make its way to SCOTUS. If by any chance it does, however, it will be enlightening to see whether and how the Court gets out under its own Hobby Lobby reasoning, which would suggest that Newdow and Newdow alone gets to decide whether “In God We Trust” is a burden to his Atheist beliefs.

The Death Exemption: Jahi McMath & the Right to Life after Death

Religious accommodations in medicine typically call to mind a pharmacist’s refusal to dispense birth control, a hospital’s refusal to provide abortion, or a parent’s refusal to vaccinate her child. In two states however, religious accommodations allow patients an exemption from death itself. The problem of religious opposition to legal “brain death” and what to do about it is currently playing out in the dramatic and tragic case of Jahi McMath.

Following cardiac arrest after a surgery for sleep apnea, 13-year-old Jahi McMath was declared brain dead by her doctors at Children’s Hospital Oakland in California in December of 2013. Children’s Hospital informed Jahi’s family, including her mother, Nailah Winkfield, of their intention to remove Jahi from her ventilator and suggested that they consider donating Jahi’s organs.

Death is widely accepted by medical communities and the public to mean the loss of either all cardio-respiratory functions or of all functions of the entire brain, including the brain stem. In the latter case, the patient may appear alive—in Jahi’s case, with the assistance of a ventilator she breathes, has a beating heart, and has healthy skin and organs—yet still be considered “dead” with no constitutional or statutory right to life. Once someone is legally dead, there is no obligation for a hospital to continue life support or an insurance plan to pay for care, regardless of their family’s wishes.

Despite the doctors’ pronouncement, Ms. Winkfield adamantly objected to the removal of Jahi’s life support. She argued that her daughter was in fact still alive, due in part to her religious belief that death occurs only as the loss of cardio-respiratory functions, regardless of brain activity or the lack thereof.

Ms. Winkfield went to court to try and keep Jahi on a ventilator, and to request that Children’s Hospital provide her with a tracheotomy and feeding tube. Superior Court Judge Evelio Grillo found that Jahi met California’s criteria for brain death, and therefore Children’s Hospital could remove her ventilator. However he stayed his order so as to keep Jahi on life support while Ms. Winkfield appealed the ruling.

Following negotiations between Ms. Winkfield and Children’s Hospital that were overseen by a U.S. Magistrate Judge, the hospital finally agreed to allow Jahi to leave the hospital…but only if Ms. Winkfield consented, despite her opposition, to the completion of Jahi’s death certificate.

Under normal circumstances, the County Coroner would have then completed an investigation and released Jahi’s body to next of kin for burial. Instead, under the terms of the agreement, Jahi was transferred from Children’s Hospital to the Alameda County Coroner (presumably while remaining on life support) and then back to a healthcare facility—this time across the country, in New Jersey.

Why to New Jersey? Because under that state’s religious accommodation law, Jahi is still alive. A New Jersey law on brain death states that the death of an individual:

“Shall not be declared upon the basis of neurological criteria … when the licensed physician authorized to declare death, has reason to believe…that such a declaration would violate the personal religious beliefs of the individual. In these cases, death shall be declared, and the time of death fixed, solely upon the basis of cardio-respiratory criteria.”[1]

Under this exemption, because of Jahi’s religious beliefs doctors in New Jersey may not remove her ventilator. Furthermore, as a living person she is able to remain on health insurance, relieving her family of enormous medical costs.

Two years after moving to New Jersey, however, Ms. Winkfield wants to bring Jahi back home to California—without, of course, risking the termination of her ongoing medical support. Two weeks ago, a federal suit was filed on behalf of Jahi McMath, now 15, requesting that California invalidate her death certificate. While the complaint focuses on demonstrating that Jahi does have neurological activity, it also argues that the death certificate violates Jahi and her mother’s constitutional and statutory religious rights.

Ms. Winkfield and Jahi state that they are “Christians with firm and sincerely held religious beliefs that as long as a person’s heart is beating, that person is alive.” According to the complaint, Jahi’s death certificate, by permitting California doctors to withhold all medical care, makes it impossible for Jahi and her mother to exercise their religion, which requires “the provision of medical treatment to all persons with a spontaneous heartbeat.” Therefore, they argue that the existence of the death certificate is a violation of their Free Exercise rights under the First Amendment. The complaint also alleges a violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA), claiming that the death certificate, which was issued while Jahi was “institutionalized” in Children’s Hospital, imposes a “substantial burden” on her religious exercise and is not narrowly tailored to further a compelling government interest.

Jahi’s First Amendment claim has little merit, as California’s laws on brain death are neutral laws of general applicability with no intent to stifle religious belief or practice, and they are not being applied in a discriminatory manner. Her RLUIPA claim is also likely to fail, as RLUIPA has never been held to apply to a private, non-psychiatric hospital,[2] and because even if Children’s Hospital were covered by RLUIPA the action that she is challenging—the issuance of her death certificate— was taken by the State of California, not by Children’s Hospital itself. Additionally, Ms. Winkfield eventually agreed to the creation of the death certificate.

Despite the weakness of Jahi’s legal claims, they still raise the interesting question of whether Jahi’s religious objection to brain death should be honored by the state of California as a matter of public policy, as it is in New Jersey. Where a religious accommodation poses a clear threat to an individual or to public health—for example, where medical professionals deny necessary care, or in the case of vaccine exemptions—the concern for third party harms should generally outweigh any burden on religious liberty. No exemption should be allowed in such circumstances.

In Jahi’s case, however, any harms imposed on third parties are more tenuous. So long as she is not cared for in a facility where resources are scarce (and therefore her presence may divert a bed or equipment from a patient with a better prognosis), giving Jahi a religious exemption would not clearly harm any identifiable person. While her medical providers may feel some discomfort in or even opposition to providing care to a brain dead patient, as in the reproductive health context a provider’s personal beliefs should rarely trump a patient’s medical wishes.

Even if there is no direct and specific third party harm, however, allowing a religious exemption for brain death would certainly impose a burden on California’s medical system as a whole. Should this burden outweigh the interest of Jahi and her family, and others like them? Need state or private insurance plans cover the potentially extraordinary costs of Jahi’s care and, if so, must they also cover after-death care for persons with secular objections to “brain death”?  Allocating the cost of Jahi’s care may be the trickiest part of this complicated issue, though it is barely mentioned in the complaint.

I’m not prepared to throw my support for or against religious exemptions to “brain death” without more research and thought, except to say that Jahi’s story is a case in which the burden to the individual seems severe, and the third party harms, particularly if no cost is imposed on the State, are attenuated. Even if Jahi’s legal claims fail, it will be interesting to see whether her case incites a call in California and elsewhere for a “death exemption,” and if so, who will be required to pick up the tab.

[1] A similar, though less stringent rule exists in New York through a state regulation requiring hospitals to have a “written policy regarding determinations of death” including “a procedure for the reasonable accommodation of the individual’s religious or moral objection to the determination.” Interestingly, these religious exemptions to legal “brain death” were motivated by a concern for the large numbers of Orthodox Jewish residents in New York and New Jersey, some of whom reject the concept of “brain death” as death.
[2] RLUIPA has been applied in certain psychiatric hospitals and mandated treatment programs. See, e.g., Sokolsky v. Voss, 2009 WL 2230871 (E.D.Ca. 2009). Interestingly, the parents of Terri Schiavo, the subject of an infamous legal battle over artificial life support, made a RLUIPA claim similar to Jahi’s against the hospice where Ms. Schiavo being cared for. This claim was dismissed as the court found that they had failed to demonstrate the hospice was a state actor. See Schiavo ex rel. Schindler v. Schiavo, 357 F.Supp.2d 1378 (2005).

2015 Winter Holiday Roundup

Image c/o Church of the Flying Spaghetti Monster

Trust me—I’m as tired of the “war on Christmas” rhetoric as you are. Nevertheless, the annual battle noel does raise some valid legal questions that are worth addressing. Private stores (including a certain coffee chain) are of course free to celebrate the season—or not—however they wish, unless they discriminate against customers or staff. The far more complicated questions of when, how, and to what extent the government can celebrate “the holidays” is still very much unresolved, however, and ripe for controversy.

The Supreme Court hasn’t helped the matter by issuing confusing and seemingly contradictory opinions on what types of holiday decorations violate the Establishment Clause by promoting religion, and which permissibly honor Christmas and Hanukkah as “secular” holidays. (If you’re surprised to hear that celebrations of the birth of Jesus Christ and the rededication of the Jewish Holy Temple are secular holidays, you’re not the only one).

In 1984 the Court decided Lynch v. Donnelley, a challenge to a nativity scene that was included in a city-sponsored Christmas display along with “a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, [and ]a large banner that reads ‘SEASONS GREETINGS.’” According to the Court, the town’s display of the birth of Jesus had a secular rather than religious purpose, and “merely happen[ed] to coincide or harmonize with the tenets of some . . . religions.” It found that when “viewed in the proper context of the Christmas Holiday season,” including the other decorations, there was insufficient evidence that the nativity scene improperly expressed support for a particular religious message. In other words—the inclusion of more Christmas stuff next to a Christmas crèche made the crèche less Christian.

The Court took up Christmas displays again five years later, in County of Allegheny v. ACLU. In this case, the Court found that a nativity scene exhibited outside a county courthouse along with poinsettias and Christmas trees, but without any Santa Clause or other “secular” Christmas symbols, violated the Establishment Clause. The Court found that “unlike in Lynch, nothing in the context of the [courthouse] display detracts from the creche’s religious message.” While certain elements of the Allegheny display did seem even more overtly sectarian than the Lynch crèche (for example, a banner declaring “Gloria in Excelsis Deo,”) both were unquestionably religious.

In contrast, the Court also found in Allegheny that a menorah displayed near a Christmas tree outside a city-county building was acceptable, as the display did not endorse either Christianity or Judaism, but was rather a “secular celebration of Christmas coupled with an acknowledgment of Chanukah as a contemporaneous alternative tradition.” This is another case in which a clearly religious symbol—the menorah—was somehow deemed secular in the context of an additional religious symbol—a Christmas tree.

The tortured attempts of the Court to create secular meanings for religious symbols are entirely unpersuasive. As Justice Brennan explains in his Lynch dissent, cases involving holiday displays do not seem so difficult because the Establishment Clause boundaries are actually unclear in this context, but rather “because the Christmas holiday seems so familiar and agreeable.” In order to create a more coherent doctrine that passes the laugh test, the Court should acknowledge that overtly Christian (or Jewish) symbols are in fact religious, and that not every holiday decoration, no matter how long-standing or treasured, is appropriate for display on government property or with government funding.

The Court’s wavering on the Constitutionality of holiday displays has created understandable confusion on the part of government actors at the federal, state, and local levels. This confusion plays out every December in the form of misguided holiday guides, religious display turf wars,  and, inevitably, lawsuits. I thought I’d take a minute to give you a round-up of this year’s Christmas controversies, including war on Christmas legislation, recent legal actions challenging holiday displays (as well as threats of legal action), and some general hemming and hawing from government agencies that are as confused by the Supreme Court’s precedent as I am:

  • This month, Res 564 was introduced into the House of Representatives by Colorado’s Doug Lamborn. The resolution would “[recognize] the importance of the symbols and traditions of Christmas,” and express the House’s disapproval “of attempts to ban references to Christmas,” and “support for the use of these symbols and traditions by those who celebrate Christmas.” While the resolution would not have the force of law, its singular focus on Christmas seems to butt up again the Supreme Court’s preference for diversity in holiday displays.


  • The ACLU of Indiana won a preliminary injunction earlier this month, preventing a public high school from performing a live nativity scene as part of its annual “Christmas Spectacular” (the Spectacular as a whole, which featured Christmas-themed songs and dancing, was not challenged). The court found that “a reasonable observer would fairly believe that the portrayal of the living nativity scene, when viewed in the particular context, circumstances, and history of the Christmas Spectacular, conveys a message of endorsement of religion, or that a particular religious belief is favored or preferred.” This case is a perfect example of the confusion that results when courts attempt to distinguish “Christ” from “Christmas.” It also seems to conflict with the analysis in Lynch, which would suggest that the “secular” Christmas elements in the Spectacular would temper the religiosity of the nativity scene.


  • Another ACLU of Indiana complaint, which challenged a nativity scene displayed outside a Franklin County courthouse, was dismissed by a federal judge in September. In response to the ACLU’s initial complaint, the County had passed an ordinance which allowed Franklin residents to erect their own non-religious displays outside the courthouse. In light of this change, the court found no proof of a Constitutional violation. While the ACLU later challenged the ordinance itself, this action appears to have settled. While I am generally wary of the more-is-better approach, it’s at least more acceptable where, as here, the displays are submitted by private actors rather than having the state select which religious traditions to include.


  • After the University of Tennessee’s Office for Diversity and Inclusion issued a memo on how to keep holiday parties inclusive, the school’s Chancellor, Jimmy Cheek, has faced condemnation from legislators and calls for his resignation. According to the Christian Science Monitor, “all nine of the state’s Republican representatives in Congress have spoken out against it, deeming the memo an affront to Christians.” While one Congressperson from Tennessee condemned Cheek for trying to “take Christ out of Christmas,” this is in fact exactly what the Supreme Court has encouraged in its Christmas display opinions.


  • In Salem, Virginia, a VA Medical center sent out a letter to its staff explaining that it would not display Christmas trees in public areas this season, as they believed this would be impermissible (in fact, courts have widely deemed Christmas trees to be secular). In response to an outcry from employees and lawmakers—including House Committee on Veterans’ Affairs Chairman Jeff Miller— the center decided that it would display trees along with other more overtly religious symbols, such as a menorah. Because as we’ve learned from Court precedent, more religion can make religious symbols secular.


  • After a two-year battle over a nativity scene at the Florida Capitol in Tallahassee, a Christian group has decided not to sponsor the display this season. The crèche had previously provoked other groups to successfully submit additional displays, including a “Festivus” pole made of Pabst Blue Ribbon cans, “Happy Winter Solstice” banner, a display from the Church of the Flying Spaghetti Monster, and a Satanic Temple diorama. Similarly, Gay pride themed Festivus poles will be displayed on public property this month in Florida, Georgia, Oklahoma, Illinois, Michigan, and Washington State. Pastafarian sculptures will also be featured in several state-sponsored displays. While it’s easy to empathize with Christians who feel that their holiday is being mocked, this is the natural result of opening the door to religious displays on public property.

The annual drama over religious displays may seem frivolous, but in an era when the registration of religious minorities is a serious topic of public debate, it should not be taken entirely lightly. The Court should reconsider its treatment of holiday displays in a way that acknowledges both the important religious (rather than secular) nature of holiday symbols, and the Constitutional harms that arise when government pretends that religion is merely “tradition.”

Know of any stories I missed? Let me know on Facebook.

And have a great December 25th—whether you’ll be celebrating the anniversary of the Eggnog Riot, the first successful ovariotomy, Mikhail Gorbachev’s resignation, the birthdays of Clara Barton, Karl Rove, and Jimmy Buffet… or any other holiday.

Bad Apples: The “Right to Discriminate” in Schools

From Pre-K to college, schools and teachers across the country are demanding—and often receiving—the right to discriminate against LGBT and female students.

In Texas, two daycare workers were apple-256262_1280recently fired after they refused to call a 6-year-old transgender boy by his preferred name, and referred to him as a “girl” despite his and his parents’ wishes. In response, the workers filed wrongful termination complaints with the Equal Employment Opportunity Commission (EEOC) alleging, among other things, that the daycare center had fired them because of their religious beliefs. One of the workers explained that while she has “nothing against anyone else,” she believes that she and her co-worker “should be able to stand up for [their] rights without being terminated for it.” The case is being brought by attorney Andy Taylor, who recently sued Houston’s mayor over issues related to the city’s Equal Rights Ordinance.

The daycare workers seem to believe that laws which criminalize religious discrimination also give them the right to misgender their young enrollees with impunity. This is a fundamental misunderstanding of civil rights law. Under federal law, certain employees are entitled to workplace accommodations related to their religious beliefs. However such accommodations must be reasonable and cannot cause more than a minimal burden on the operations of the employer’s business.

Any accommodation that would permit an employee to ignore a customer and his parents’ wishes regarding his gender identity is not reasonable, regardless of the employee’s religious beliefs. Such actions, which might themselves be considered discriminatory and highly offensive, could severely damage the daycare center’s reputation, disrupt relationships among staff, and cost the center business.

But there’s another kind of religious exemption that is far more troubling than the Houston case, which could get dismissed by the EEOC. Increasingly, religious colleges and universities are taking advantage of an exemption in another area of civil rights law, and requesting government permission to discriminate against LGBT and female students while still receiving federal money.

Title IX, passed in 1972, prohibits sex discrimination by educational institutions that receive federal funding. Since this time, the law has been interpreted and expanded to include a range of discriminatory actions. A 1988 Amendment to Title IX, called the Civil Rights Restoration Act, incorporated an “abortion neutrality” provision which clarified that while schools did not need to provide benefits related to abortion, they also could not discriminate based on a student’s decision to seek an abortion. In 2014, as part of a guidance document on sexual violence, the Department of Education indicated that the requirements of Title IX “extend[] to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.” And while marital status discrimination is not covered by the law per se, courts have applied Title IX to situation in which schools single out unmarried mothers or pregnant women for punishment.

There is a significant loophole in Title IX, however, in the form of religious exemptions. The statute does not apply to any “educational institution which is controlled by a religious organization if the application of [the prohibition of sex discrimination] would not be consistent with the religious tenets of such organization.”

Remember that this provision doesn’t just give religious schools the right to discriminate against women and LGBT students—it gives them the right to do so and still receive taxpayer money. That means women and gender non-conforming people are paying to support educational institutions that can actively discriminate against them.

This isn’t a mere theoretical harm. Dozens of colleges and universities receiving millions of taxpayer dollars have already received exemptions from Title IX’s requirements. The Column, an LGBT media organization based in Minnesota, has been compiling and tracking these requests.

The most recent educational institute to attract media attention for its successful exemption request is Carson-Newman University in Tennessee. The University requested the ability to ignore provisions of Title IX which would otherwise prevent them from “engaging in recruiting and admissions under a policy which called for the consideration of an applicant for admission’s sexual orientation, gender identity…marital status, past and present practices regarding marriage, sex outside marriage, pregnancy, and abortion.”

The university claims that despite its request, it won’t discriminate. In interviews, the school’s president seemed to indicate that the exemption request was made solely at the advice of its legal counsel. That assurance is of little comfort, however, considering the University now has the government’s go-ahead to collect federal funds while banning or punishing LGBT students and students who become pregnant outside marriage or have an abortion.

Explicit government approval of, and funding for, institutions that discriminate based on religious beliefs raises serious Establishment Clause concerns. While Supreme Court doctrine has widely upheld government support for religious schools, these cases have made sure to emphasize the essentially secular nature of the government’s actions. For example, the Court has upheld government school-aid programs that distribute non-religious materials on a neutral basis to both public and private schools. The Court has found that such programs are acceptable, as they neither indoctrinate pupils nor define recipients in reference to religion.

In contrast, the Title IX exemption is neither neutral nor secular. It explicitly exempts religious schools, and very few other institutions, from a major civil rights protection. This exemption comes at the expense of LGBT and female students and taxpayers. There are important reasons that antidiscrimination laws apply broadly, and we should be extremely wary of exemptions that limit their reach—especially when taxpayer dollars are at stake.

Do Taxpayer Funded Security Guards in Religious Schools Violate the New York Constitution?


By Elizabeth Platt, Associate Director, Public Rights/Private Conscience Project
school-bus-1527162-640x480Yesterday, the New York City Council voted to use $19.8 million in city funds to pay for security guards for private and parochial schools. This channeling of taxpayer dollars to religious schools seems as though it should raise a conflict with Art. XI, § 3 of the New York Constitution, commonly known as the “Blaine Amendment.”

The Blaine Amendment states:

“Neither the state nor any subdivision thereof, shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection, of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught…”

This prohibition on using public money to support religious schools seems both broad and clear on its face, but has nevertheless been narrowed through case law, most notably the 1967 case Board of Education v. Allen. In Allen, the Court of Appeals upheld a program requiring “all school boards to purchase and to loan textbooks on an equitable basis to all pupils residing in the school district who are attending … any public or nonpublic school.” (emphasis added).

In the face of a Blaine Amendment challenge, the Court of Appeals—New York’s highest court— found that the book loan program had “no intention to assist parochial schools as such,” but was rather “meant to bestow a public benefit upon all school children, regardless of their school affiliations.” Holding that “not every State action which might entail some ultimate benefit to parochial schools is proscribed,” it found the program constitutional. In contrast, a 1970 trial court case, Iona College v. Nyquist, found that a direct financial grant to Iona College, a Catholic institution, did violate the Blaine Amendment.

Decades later, a 2002 report by then-New York Attorney General Eliot Spitzer analyzed various proposed aid programs to non-public schools. The report argued that programs in which the “primary beneficiaries… are the students in both public and non-public schools, not the schools those students attend,” do not violate the Blaine Amendment. It stressed that it was “constitutionally significant for purposes of the Blaine Amendment that the textbook statute upheld in Board of Educ. V. Allen…provided that secular textbooks be loaned to the children enrolled in schools, not to the schools themselves.”

The bill recently passed by the City Council seems to provide a substantial financial benefit directly to parochial schools rather than to students, and may thereby violate the Blaine Amendment. On the other hand, the hiring of security guards is intended to benefit students in all schools, rather than being simply a direct financial grant to a parochial school. If a court were to find no Blaine Amendment violation on that basis, then what type of grant would possibly be considered impermissible, apart from perhaps a direct unrestricted financial grant? Any grant to a not-for-profit religious school will in some way benefits its students. Should a challenge to this bill arise and reach the Court of Appeals, the Court should take the opportunity to salvage the Blaine Amendment and ensure that taxpayer funds are not used to subsidize religious education.

Religious Freedom for Refugees? Not So Fast…

By Elizabeth Platt, Associate Director, Public Rights/Private Conscience Project

Mere months after a host of prominent conservatives condemned the Supreme Court’s marriage equality ruling as an attack on religious freedom (one particularly colorful character called it “judicial tyranny” that would lead to the criminalization of Christianity), these same politicians seem to have had a change of heart. Not on marriage equality, of course, but on the importance of religious freedom in American society.

From shutting down mosques to barring Muslims from the oval office to demanding a Christianity test for Syrian refugees to the outrageous (albeit unclear) suggestion of creating Muslim registration system, conservatives seem to be caught in a vicious cycle of Islamophobic one-upmanship. The very same voices who clamored for new religious exemption laws and even held rallies for religious freedom featuring “special guests victimized by government persecution,” seem to be leading the charge against Muslims both at home and abroad.

Lest one think these arguments have been taken up only among the most extreme on the right, even the relatively moderate Jeb Bush argued recently that “we should focus our efforts as it relates to refugees on the Christians that are being slaughtered.” And more than half the nation’s Governors are doing all they can to prevent Syrian refugees from being placed in their state.

Perhaps the most explicitly discriminatory suggestion has come from Ted Cruz—host of the aforementioned rally for religious freedom. Rather than Bush’s suggestion of prioritizing Christian refugees, Cruz has stated that only Christians should be permitted to enter the U.S., and Muslim refugees should be kept out, period.

Unsurprisingly, Cruz has not offered a plan on how to determine which refugees are in fact Christian. Bush suggested putting the burden of proof on the refugees themselves— “I mean, you can prove you’re a Christian,” he explained.

In the past, however, conservatives haven’t been so keen on government-imposed tests of religious faith. Hobby Lobby and other religious exemption cases brought under the Religious Freedom Restoration Act (RFRA) require the party requesting an accommodation to demonstrate a substantial burden on their sincerely held religious belief. Conservatives have argued that this should be an extremely weak test—contending that courts have no authority, or ability, to inquire into the sincerity of a religious belief, or to evaluate how closely it correlates with official religious doctrines. So if the Supreme Court shouldn’t be able to question the religious beliefs of a craft store owner, why do conservatives want State Department or Department of Homeland Security agents deciding whether someone is Christian?

The recent calls for explicit religious discrimination and persecution against Muslims by major political leaders are chilling. They also belie any claims that these politicians are honestly concerned with religious freedom. Rather, they are interested in religious rights only for those who share their views on hot-button political issues like abortion, contraception, and LGBT rights.

For those who disagree… hope you enjoyed the holiday and escaped the stealth halal turkeys.