Category Archives: Blog Posts

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.

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

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

Reblogged from Rewire News

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

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

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

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

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

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

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

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

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

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

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

Report: Church, State & the Trump Administration

PRESS RELEASE

JANUARY 30, 2017 

Trump and Cabinet Nominees Seek to Restrict Muslim Rights, Break Down the Wall Between Church and State

MEDIA CONTACT: Ashe McGovern
amcgovern@law.columbia.edu

A new document issued by the Public Rights/Private Conscience Project (PRPCP) at Columbia Law School outlines the numerous areas in which the Trump administration will seek to advance particular conservative Christian tenets, restrict the rights of religious minorities, and break down the barrier between church and state. Enactment of the administration’s policy priorities would call into question the careful balance that currently exists between the First Amendment and other fundamental rights guaranteed under the Constitution. The report, entitled Church, State & the Trump Administration, highlights the ways in which the new administration’s early executive actions and cabinet nominations, as well as his campaign rhetoric and proposed policies, indicate hostility toward religious liberty guarantees of the First Amendment and an intentional disregard for other fundamental rights guaranteed by the Constitution. The report will continue to be updated in the coming weeks as the administration takes further action.

Despite his stated commitment to religious freedom, during his first week in office President Trump has issued an Executive Order that clearly expresses an official State preference for Christianity, and disapproval of Islam. Furthermore, Trump has consistently demonstrated that his policies will be grounded in the concerns of certain conservative Christian groups. His Executive Order reinstating a significantly expanded version of the anti-choice global gag rule, an expected Executive Order sanctioning anti-LGBTQ discrimination, and his selections for cabinet appointments all point to an administration that will seek to further particular religious ideals while breaking down the barrier between church and state.

President Trump and cabinet appointees appear to hold a deeply flawed understanding of the First Amendment, and particularly the Establishment Clause, which prohibits the government from favoring or disfavoring any religious group or belief. If confirmed, many of his appointees are likely to implement policies that will harm the rights of religious and other minorities, particularly Muslim communities, LGBTQ people, and communities seeking access to adequate healthcare and protection of their reproductive rights. A recently released report by PRPCP also highlights the ways in which communities of color are particularly harmed by the religious exemptions that President Trump, Vice President Pence, and others in his cabinet have championed.

“Despite his insistence that the protection of religious liberties is a top priority, Trump has made clear, through executive orders and cabinet appointments, that he seeks only to prioritize a version of white Christian nationalism and supremacy, that, if left unchecked, would create tangible harms to many marginalized communities—and violate fundamental liberty and equality guarantees under the Constitution,” said Ashe McGovern, Associate Director of PRPCP.

“Religious freedom is fundamentally inconstant with the State’s endorsement of particular religions or religious beliefs,” said Elizabeth Reiner Platt, PRPCP’s director. “Anyone committed to free exercise rights should be deeply concerned with Trump and his cabinet’s apparent distain for the separation of church and state.”

“The new administration has shown a disturbing commitment to write the First Amendment out of the U.S. Constitution,” said Katherine Franke, Sulzbacher Professor of Law and Faculty Director of PRPCP.   “In its first week in office the Trump White House has been remarkably aggressive in both embracing a particular religious agenda in violation of the Establishment Clause and discriminating against people whose faith it disfavors in violation of the Free Exercise Clause of the First Amendment,” Franke continued.

Read the full report here.

 

PRPCP’s Comment Regarding Zubik

This week the Public Rights Private Conscience Project (PCPCP) submitted a letter to the Department of Health & Human Services (HHS) in response to their request for information (RFI) regarding an accommodation for religious employers who do not wish to provide their employees with insurance coverage for no-cost contraceptive care, as mandated by the Affordable Care Act (ACA).  The request came shortly after the Supreme Court punted a case on this very topic back to the lower courts, leaving religious freedom and women’s health advocates in limbo regarding the mandate’s fate.

The case, Zubik v. Burwell, combined separate challenges from religious non-profits to the ACA’s contraceptive mandate, which requires employers to provide health insurance coverage for birth control to their employees. The religious accommodation to the mandate allowed religious non-profits to file a one-page form with the HHS to opt out, and made health insurance companies or third-party administrators responsible for stepping in to provide this coverage without involvement or funds from the employer. But the non-profits asserted that even this requirement violated their religious beliefs. The government holds that the accommodation complies with relevant laws protecting religious freedom, such as the Religious Freedom and Restoration Act (RFRA), which was enacted in 1993 to protect religious minorities.

In the RFI, the government states that their commitment to religious freedom and desire to find an accommodation that works for all led to the public information request.  The government also recognized that the Zubik decision “affect(s) a wide variety of stakeholders, including many who are not parties to the cases that were before the Supreme Court,” which they say increased their desire to find an effective solution to the problem presented in Zubik.

The RFI asks the public to comment on two alternatives to the ACA religious accommodation. The first alternative would allow religious non-profits to contract with insurers for coverage that did not include contraceptives and then the insurer would have to notify employees separately and explain that they would provide no-cost contraceptive coverage independent of the employer’s health plan. Here, the religious employer would only have to verbally notify the insurer of their objection, rather than through a form. The second alternative was for women employees to affirmatively enroll in policies that only covered contraceptives.

In the comment that PRPCP submitted we began by discussing how the existing religious accommodation does not offend RFRA:

“RFRA prohibits the government from substantially burdening the exercise of religion unless doing so is the least restrictive means of furthering a compelling government interest. The current accommodation meets this standard for two reasons: first, it does not impose a burden, much less one that is substantial in nature, on religious exercise and second, it is the least restrictive means of furthering the government’s compelling interests in ensuring access to contraceptives, a necessary part of basic preventative health care, and avoiding violations of the Establishment Clause.”

PRPCP then discusses how the alternative accommodations proposed by the plaintiffs would impose harms on employees and their families and risk violating the Establishment Clause. Here, we noted that a number of Supreme Court cases have held that the Establishment Clauses was violated when a government-created religious accommodation imposed serious harms on other private individuals. We stated:

“Both of the alternative accommodations put forth in the RFI would impose a significant harm on non-beneficiaries, most notably employees and their families. The first alternative, by providing ample opportunity for confusion, misrepresentation, and further RFRA litigation, would make employees susceptible to extensive gaps in necessary contraceptive coverage. Further, by making enforcement of the contraceptive mandate significantly more difficult, it would impose costs on both employees and the government. The second alternative would impose significant burdens on third parties by requiring health plans to create, and employees to seek out and enroll in, contraceptive-only health plans. These plans would likely face substantial administrative and financial difficulties. Furthermore, they would result in fewer employees and families having adequate access to contraceptive health care.”

Lastly, we mentioned how important seamless access to cost-free contraceptive care is for women of color, a conversation that is oftentimes left out of the discussion about religious accommodations to the ACA. PRCPC noted:

“Eliminating disparities in reproductive health care, including high rates of unintended pregnancy, involves increasing access to contraception and family planning resources. Access to contraception allows women of color to plan whether and when they will have a child, which research has shown provides them with greater financial stability and freedom.  Many women of color, who on average earn significantly less than white women, cannot afford to pay for quality contraception. For example, the IUD is considered the most effective form of contraception available on the market today and costs between $500.00 and $1,000.00 without insurance. Because of its high cost, among other factors, only six percent of Black women have used IUDs compared with seventy-eight percent who have used birth control pills, which have higher user failure rates.  Providing women of color with access to contraceptive coverage at no additional cost will help to reduce the reproductive health disparities that we see in communities of color. This is an important first step in ameliorating the overall health disparities between women of color and white women in the United States.”

We applaud the Department’s commitment to religious freedom as mentioned in the RFI, however hope this commitment does not outweigh its duty to uphold the rights of women seeking cost-free contraceptive coverage. Unfortunately, the Supreme Court dodged making a decision on this important

New York City’s PreK Program’s Church State Problem

upk

New York City’s school system is no stranger to church state problems. Since 2005, the city has rented space for public schools in religious buildings, causing conflicts ranging from lease provisions that require students to be taken off-site for state-mandated sex education classes to students having to walk by crosses and other religious images as they make their way to school. Last year, the City awarded $19.8 million in funds to religious schools to hire security guards. This school year, New York City’s Department of Education will be dealing with another church state issue as the city enrolls the largest number of four year olds ever into its pre-kindergarten program.

In September, tens of thousands of pre-kindergarten students will be attending class for the first time as part of the De Blasio Administration’s hallmark universal full day pre-k (UPK) program, now in its third year.[1] In order to reach its enrollment goals, the city has been urging religious schools and community organizations to host the UPK program, since most public schools have reached capacity. The city is now providing religious schools roughly $10,000 per student, raising potential conflicts with church state laws. More problematically, under a guidance document issued by the De Blasio administration these religious schools are permitted to teach from religious texts, so long as they do so “objectively as part of a secular program of education,” and are allowed to preference hiring teachers that share the school’s religion. While schools must cover religious symbols on their exterior entrance and UPK class rooms, they need not do so where this is “not practicable.” De Blasio also issued a rule allowing UPK programs to hold breaks for optional prayer.

In New York State, citizens are protected from government advancement of religion by both the Establishment Clause of the U.S. Constitution, which prohibits the government from passing any law “respecting an establishment of religion,” and the so-called “Blaine Amendment” of the New York Constitution. New York’s Blaine Amendment is more restrictive than the Establishment Clause, and maintains that the State should not use public money in aid “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.”[2]

Unfortunately, both of these protections have been substantially watered down over the years by federal and state court decisions that have allowed the government to fund religious schools through various programs. For example, the Supreme Court decision Agostini v. Felton upheld a New York State program that sent public school teachers into parochial schools to teach remedial education. The New York State Supreme Court found in College of New Rochelle v. Nyquist that a college’s affiliation with religion did not make it ineligible for state aid under the Blaine Amendment, unless the “affiliated religious denomination controls or directs the institution towards a religious end” or the college is “controlled or directed to a degree so as to enable the religious authorities to propagate and advance—or at least attempt to do so—their religion.”

Despite this case law, New York’s UPK program poses opportunities for violations of the Establishment Clause and Blaine Amendment. A significant issue is the fact that UPK students are so young. Some courts have placed heightened scrutiny in deciding whether there was an Establishment Clause violation when vulnerable groups, like young students, are involved. In Rusk v. Crestview Local Schools for example, a district court ruled that an elementary school violated the Establishment Clause by distributing flyers advertising community activities sponsored by churches to “impressionable elementary students” who might believe the activities were school-endorsed.[3] This decision was overruled by the Appeals court which found that the parents were the ones who would receive and observe the flyers not the kids, therefore quelling concerns that the flyers would leave an impression on the students. However, the district court’s decision shows that courts sometimes take the age and vulnerability of school students into account when deciding whether an act violates the Establishment Clause.

The potential for coercive indoctrination in the UPK program is real. Publicly-funded UPK programs are supposed be available for all students regardless of religious belief, and there does not appear to be any clear information on the City’s Pre-K Finder to let parents know that a program is housed in a religious institution. Thus, for example, a Muslim or atheist family could apply for a UPK program that is located in a Christian school either because they were not aware of its religious identity, they did not realize that such schools are permitted to teach religious texts, practice coreligionist hiring, and hold prayer breaks, or simply because of a lack of alternative options close to their home. This could leave the four-year-old child in a position where they have to see religious symbols that are in direct conflict with their religious teachings every day, wear a uniform bearing the religious name of their school, read religious materials, watch their fellow students break for prayer, and follow instruction from teachers and an administration that practices a faith different from their own. It is not hard to see how such a scenario could lead to impermissible indoctrination of an impressionable young mind.

Church state issues in education are complicated, especially in a city like New York which is one of the most religiously diverse cities in the nation.[4]   However, law and policy makers have a responsibility to make sure that students are in culturally and religiously sensitive learning environments that respect and pay homage to our city’s religious diversity. Children’s minds are too impressionable to be subjected to religious materials and practices that could potentially indoctrinate them with a particular religion.

[1] Ben Chapman, Mayor De Blasio’s Universal Pre-K Program Still Failing to Reach Some Families, New York Daily News (April 19,2016) http://www.nydailynews.com/news/politics/poor-new-yorkers-left-free-universal-pre-k-article-1.2607773

[2] College of New Rochelle v. Nyquist, 326 N.Y.S.2d 765, 765 (1971)

[3] Rusk v. Crestview Local Schools, 220 F.Supp.2d 854 (6th Cir. 2002)

[4] Jed Kelko, America’s Most Religiously Diverse Cities, Citylab (Dec. 20, 2012) http://www.citylab.com/politics/2012/12/americas-most-religiously-diverse-cities/4227/

Constitutional Amendment SJR 39 Could Immunize Religiously-Motivated Crimes From Prosecution

Link to Document/Text here:
https://bit.ly/1S7ttmn

Media Contacts:

Elizabeth Reiner Platt
Associate Director
Public Rights/Private Conscience Project
ep2801@columbia.edu

Elizabeth Sepper
Associate Professor
Washington University School of Law
esepper@wustl.edu

April 18, 2016

The Public Rights/Private Conscience Project at Columbia Law School issued a statement today adding to its earlier memorandum on Missouri’s Senate Joint Resolution 39, a proposed amendment to the state constitution. The statement posits that SJR 39 would prevent Missouri and its municipalities from prosecuting crimes, including trespass, harassment, or assault, that are motivated by a religious belief concerning marriage between same-sex couples.

SJR 39 would prohibit the state and local governments from imposing a “penalty” on many religious individuals and organizations for acts motivated by their “sincere religious belief concerning marriage between two persons of the same sex.” Missouri law routinely employs the term “penalty” to mean both criminal punishments and civil fines or actions. The amendment would therefore pose a barrier to prosecuting certain religiously-motivated criminal conduct.

For example, the amendment could immunize from prosecution members of the Westboro Baptist Church, a religious organization, if they violated state trespass laws and entered a private chapel or home in order to protest the wedding of a same-sex couple. It could also protect Church members from prosecution if they harassed or even physically assaulted the couple or their guests.

“Not only does SJR 39 attack the equality and dignity rights of LGBT Missourians and supporters of marriage equality” said Columbia Law School Professor Katherine Franke, director of the Center for Gender & Sexuality Law, “it also puts them at risk of physical harm.” Elizabeth Sepper, Associate Professor at Washington University School of Law in St. Louis, said SJR 39 “allows the religious preferences of a few to trump not only other individual rights, but also important governmental interests in public safety and impartial enforcement of the law.”

The statement also summarizes other arguments made in the longer memorandum, which maintains that SJR 39 violates the Establishment Clause of the First Amendment.

Read the statement here.

Georgia Governor Vetoes Right-To-Discriminate Bill – HB757

This blog was originally posted at Religion Dispatches

Yesterday, Governor Nathan Deal announced that he would veto HB 757, a broad religious exemption bill that would have sanctioned discrimination against LGBT and other Georgians. A Frankenstein-esque combination of what had previously been several different bills, HB 757 would have violated the Establishment Clause by stripping many Georgians of their legal rights in order to accommodate the preferences of religious actors. Columbia Law School’s Public Rights/Private Conscience Project recently released a memo, signed by many Georgian legal scholars, explaining why the bill was unnecessary, discriminatory, and unconstitutional.

Two of Georgia’s three biggest cities—Atlanta and Savannah—both have municipal ordinances banning some forms of discrimination based on sexual orientation and gender identity, and others may follow suit. Atlanta’s ordinance is particularly broad, banning LGBT and marital status discrimination in housing, public accommodations, and private employment. HB 757 would have allowed religious organizations, individuals, and businesses to ignore local ordinances and discriminate against LGBT Georgians, essentially prioritizing anti-LGBT religious beliefs over the rights and liberties of others. A few sections of the bill went even further, and could have sanctioned discrimination on the basis of race, sex, nationality, religion, disability, and pregnancy.

Governor Deal’s veto is an important step in the right direction, but the debate over a religious right to discriminate is far from over, including in Georgia. Legislators who support HB 757 have already called for a special session to override the Governor’s veto, and many other states have introduced bills similar to HB 757.

Below is a run-down of some of the worst provisions of the bill. The list also notes similarities between sections of HB 757 and bills that have been introduced in other states across the county:

  • One section of the bill would have given faith-based organizations, including schools, universities, and certain non-profits, the right to refuse (1) to rent property for events that they find objectionable; and (2) to provide “social, educational, or charitable services that violate [their] sincerely held religious belief.” Georgians could therefore have been denied services ranging from adoption to higher education to hospice care based on their sexual orientation or gender identity—or even based on their race or nationality. Moreover, faith-based organizations could refuse to provide nearly any service otherwise required by Georgia laws and administrative rules—for example, regulations governing requirements for care at day care facilities, drug treatment centers, or nursing homes. Bills that offer similar protection to businesses that with to discriminate are being considered in Mississippi, Missouri, and many other states.
  • Another provision stated “[a]ll individuals shall be free to attend or not attend” marriages and other rites at their discretion. At first glance, the provision seems merely silly, since it’s difficult to imagine a circumstance in which one would be legally required to attend a wedding in the first place. However, if the word “attend” were to be read broadly, the bill could have given court clerks, officials, and even judges the state-sanctioned right to discriminate against Georgians exercising their Constitutional right to marry. It could also have allowed businesses that sell wedding-related services—such as musicians, florists, or caterers—to discriminate against customers based on religious beliefs, since providing these services may require attending a wedding. This section of the bill contained no ban against invidious discrimination otherwise prohibited by state or federal law, and therefore may have empowered government officials and wedding-related service providers to refuse to attend interfaith or interracial weddings. Allowing state actors to discriminate poses additional Establishment Clause concerns, since it gives the appearance of State support for a particular religious belief. At least eight states, including Kim Davis’s home state of Kentucky, have or are considering bills that would allow government employees to discriminate.
  • A third part of HB 757 stated that no faith-based organization “shall be required to hire or retain as an employee any person whose religious beliefs or practices or lack of either are not in accord with the faith based organization’s sincerely held religious belief,” except as required by the Georgia or federal Constitutions or by federal law. This section would have allowed faith-based organizations to fire employees expressly for their sexual orientation or gender identity. It could also lead to discrimination against pregnant women and single parents, especially single mothers, as well as the enforcement of rigid, invasive, and discriminatory codes of conduct. This section of the bill is somewhat similar to one introduced in Missouri, which aims to remove religious organizations from the definition of “employer” within the state’s human rights law.
  • Finally, the bill also contained a Religious Freedom Restoration Act (RFRA) provision modeled on the federal RFRA. While the RFRA contained a caveat that it should not “be construed to … [p]ermit invidious discrimination on any grounds prohibited by federal or state law,” it did not require compliance with municipal laws banning sexual orientation, gender identity, and marital status discrimination. It therefore would have invited individuals and businesses to assert religion-based justifications for avoiding compliance with local anti-discrimination laws. Over a dozen states from Iowa to New Mexico have introduced RFRAs.

While HB 757 is gone for now, it’s far from forgotten. There’s still a chance that legislators could override the Governor’s veto, and dozens of similar bills are still waiting to be picked up in states nationwide. It’s therefore important to understand that the veto of HB 757 was not just a win for LGBT equality or an acknowledgment that discrimination is bad for business. Rather, it was a necessary step to preserve the balance between religious and secular rights enshrined in the First Amendment of the U.S. Constitution.

We’re Hiring! Contract Position – Temporary – Research Analyst – Racial Justice Program

Research Analyst Position (full-time/part-time)
Contract position – Temporary

The Racial Justice Program, part of Columbia Law School’s Public Rights/Private Conscience Project, produces original research on the impact of religious exemptions on communities of color and leverages that research into policy and advocacy interventions.

Columbia Law School’s Public Rights/Private Conscience Project is a unique law and policy think tank based at Columbia Law School. Its staff conceptualizes and operationalizes new frames for understanding religious exemptions and their relationship to reproductive and sexual liberty and equality rights, and disseminates those frames through legal scholarship, public policy interventions, advocacy support, and popular media representation.

The Program is seeking a Research Analyst to join our team. The Research Analyst will examine ways religious exemptions impact communities of color through health care restrictions, employment restrictions, and other means. This is a 2-month full-time contract position, with possibility of extension. Alternatively, for the right candidate in need of a more flexible work schedule, this can be a 4-month part-time position, with possibility of extension.

Key Tasks include:

• Determine analytical requirements for data processing, including the selection of appropriate data, tabulations and statistical methods

• Identify and interpret trends or patterns in complex data sets

• Interpret data and analyze results using statistical techniques and provide report(s)

• Assist with preparation of presentations describing project methods and results of analyses Requirements:

• A master’s degree from an accredited college in statistics, sociology, public policy, or a closely related field; with at least two (2) years of related work experience, or

• A baccalaureate degree from an accredited college, with at least four (4) years of related work experience

• Strong quantitative and problem-solving skills; experience with empirical methods and data analytics including working with large, complex data sets and conducting research

• Experience collecting and working with secondary data collection for social science research including data cleaning, analysis, and documenting procedures

• Knowledge in the use of one or more statistical research software packages (STATA, SPSS, SAS)

• Ability to think outside of the box and develop novel strategies for analysis

• Experience working effectively both independently and as part of a team

• Knowledge of health care policies and employment policies strongly preferred

• Knowledge of racial justice issues strongly preferred

To apply, please submit your resume and cover letter by e-mail to gender_sexuality_law@law.columbia.edu.

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.