Category Archives: Blog Posts

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 Pre-K 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.

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.

Recovery or Religion? The Problem with Faith-Based Alternatives to Incarceration

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

When the judge and prosecutor offered Nicklaus Ellison an opportunity to avoid a year in jail by enrolling in Teen Challenge, a “Christ-centered” substance abuse program, it seemed like the obvious choice. What Nicklaus—an openly gay 20-year-old from Knoxville, Tennessee— and his family didn’t know was that in addition to treating his addiction, Teen Challenge would also attempt to make him straight.

Nicklaus died from a drug overdose in a stranger’s apartment shortly after running away from a Teen Challenge facility in Jacksonville, Florida in 2011. Among his belongings, his mother found a letter that Nicklaus had written to his sister but never sent. She was troubled when she read her son claim in the letter, “they de-gayed me after all. Once I realized that God doesn’t make homosexuals I realized something; there’s no such thing.” A recent New York Times article relayed the enormous difficulties that Nicklaus’s family has faced in seeking justice for—or even information about—his death.

Nicklaus is by no means the only person who has faced a choice between jail or participation in a Christian program. Several federal and district courts across the country—including the Supreme Court of Tennessee— have held that widespread practices of requiring participation in a religious treatment program as an alternative to prison, or as a condition for maintaining certain privileges within prison, violate the Establishment Clause of the First Amendment.

Yet despite these decisions, the practice evidently continues.

Not only are judges, prosecutors, and prison systems sending people to religious programs, but taxpayers are paying for them. During his presidency, George W. Bush spoke out in support of Teen Challenge as a part of his faith-based initiative program. While the Department of Justice (DOJ) recently amended agency rules, aiming to ensure that “Federal financial assistance is not used to coerce or pressure beneficiaries along religious lines,” the agency also acknowledged that “Faith-based organizations that receive federal funding are permitted to use religious terms in their organizational names; select board members on a religious basis; include religious references in mission statements and other organizational documents; and post religious art, messages, scriptures, and symbols in buildings where they deliver federally funded services and benefits.” And as recently as November 2015, DOJ awarded a grant of over $38,000 to Teen Challenge in Minnesota.

Forcing anyone to participate in a religious program is deeply problematic and clearly unconstitutional, but the situation is even more dire for people like Nicklaus. LGBT people already face high rates of discrimination in the criminal justice system, and coercing them into anti-gay programs like Teen Challenge can have devastating consequences.

No one should be forced to choose between Church and jail, and LGBT people with criminal convictions should not have to risk their dignity, health, and lives by being sentenced to programs that attempt to “convert” them. The fact that judges still enforce such requirements should trouble anyone who believes that our criminal justice system should be in the business of encouraging recovery, not salvation.

 

Will SCOTUS Call the “Bluff” of Religious Liberty Activists?

Originally posted at Religion Dispatches on November 9, 2015.

By Kara Loewentheil

If the announcement that the Supreme Court will hear arguments in a challenge to the Affordable Care Act’s contraceptive coverage requirement (CCR) makes you feel like you’re experiencing deja vu, you’re not exactly wrong.

After Hobby Lobby, the Administration took a slow and leisurely approach to creating new regulations for the accommodation process. Finally released in July, the regulations, among other things, instituted a process for those non-profit religious organizations (NPRO) that objected to the original accommodation.

Under the revised accommodation process, the NPROs do not have to directly inform their insurance provider or third-party administrator (meaning an entity that administers their insurance plan even if the organization pays for it themselves, which is called being “self-insured”) of their objection.

Instead the NRPO can inform the government, and the government will inform the insurance company or the TPA, which then has to provide the contraceptive coverage itself. (That is, unless the TPA is actually exempt, like the TPAs that are a form of an insurance plan called a “church plan”—the federal government lacks the ability to regulate those plans under ERISA and cannot require them to provide the coverage.)

If that seems silly—well, on some level, it kind of is. And here’s why: Inserting the government into the communication process was meant to address the complaint by some NPROs that even informing their insurance company or TPA of their objection to contraception made them complicit in the eventual provision of contraceptive coverage to their employees.

But it was never clear why an NPRO that objected to informing their insurance company or TPA was going to feel just dandy about informing the government so the government could inform the insurance company or the TPA.

In fact, of course, they didn’t—instead, various NPROs that had objected to the original form of the accommodation continued to object to the revised form of the accommodation. Until recently all the circuit courts to consider these claims had ruled against them, but then the 8th Circuit upheld a grant of preliminary relief in one of these cases, and now here we are, with the Supreme Court granting cert to several of the consolidated cases to consider a variety of questions involving NPROs’ objections to contraceptive coverage and RFRA’s requirements.

At bottom though, the question is fairly simple: Is the Supreme Court going to call the objectors’ bluff? I don’t say “bluff” because I think the NPROs are insincere—it’s not about their sincerity at this point. But the “bluff” in all of these developments is that there even exists some way of providing contraceptive coverage that the objecting NPROs would find acceptable.

And it’s been clear for a while now that the only solutions they would find acceptable are factually impossible outcomes in our current system: e.g., single-payer health care, or a government-funded birth control insurance program. Of course those are outcomes that the same organizations would be lobbying heavily against if they were proposed to Congress!

What’s really at issue here is whether the Supreme Court is going to allow religious objectors to completely opt-out of laws by continually re-defining the burden on their religious exercise, regardless of the impact on third parties and the harms done to them. And you can bet if that strategy succeeds here, we’ll see it in use very soon in other contexts, like exemptions to LGBT non-discrimination laws and marriage equality protections. Let’s hope it doesn’t come to that.

 

 

The New HHS Regulations Can’t Win A Zero-Sum Game

Image credit:  American EHR Blog

Yesterday the Obama Administration released the long-awaited updates to the regulations that govern the availability of an accommodation for religious objectors to the Affordable Care Act’s contraceptive coverage requirement. They came in two parts:

1. A final interim regulation that allows objecting religiously-affiliated organizations who decline to fill out the original form required for an exemption to instead notify the government in writing that they object and to provide the government the contact information for their insurance company or third-party insurer.This, in effect, is the Wheaton College regulation. After such notification is received HHS will then take on the responsibility of contacting  that insurance company or third-party insurer to inform them that they must provide contraceptive coverage to the eligible employees at no cost to the employer in question. This regulation is effective immediately, but comments may be submitted for 60 days, after which a final regulation will be issued (which may or may not end up differing from the interim final regulation).

2. A proposed regulation to govern the process for closely-held corporations or non-corporate-form businesses to seek an accommodation from the contraceptive coverage requirement. This is the Hobby Lobby regulation. Under the regulation, closely-held for-profit businesses that object would have access to the same accommodation as non-profit organizations (i.e., the insurance company or third-party insurer must provide the coverage at no cost to the eligible employees or the company). The regulation is not in effect yet, and the government is actively seeking comments as to a number of elements, including how the regulations should define a closely-held corporation, and how the administering departments should evaluate the existence and scope of a religious objection (if at all). Comments may be submitted for 60 days, after which the government will issue a final regulation.

If you’re interested in the details of how this will all work, logistically, Marty Lederman has written up a nice concise explanation here; no reason to reinvent the wheel on that score. What I want to draw attention to in this post is the fact that none of these accommodations will satisfy the objectors who seem to believe that any type of notification to the government makes them impermissibly complicit in what they believe to be a sin. This may well turn out to be some of the for-profit businesses as well as some of the non-profit organizations. As I explained when the order was issued, this was always a problem with the logic of the Wheaton College order, and nothing in these accommodations will solve that problem. Instead, at least some of the plaintiffs will continue to maintain their suits on the grounds that nothing apart from a full exemption will satisfy their religious obligations, and the courts will likely end up drawing the line somewhere, which makes the entire Wheaton College order and all this rigamarole seem fairly silly. If courts are going to have to end up telling these plaintiffs that they have to notify the government in some way even if they believe that violates their religious beliefs, then it’s hard to understand why the Supreme Court shouldn’t have just required them to fill out the original form and be done with it. The alternative, that courts will eventually grant blanket exemptions to some of these plaintiffs, is an unacceptable outcome given the great harm that such an exemption would impose on the women covered by the insurance plans at issue.

Kara Loewentheil is the Director of the Public Rights / Private Conscience Project and a Research Fellow at Columbia Law School.