Category Archives: FADA

Proposed New York State Health Regulation Contains Troubling Exemption: The PRPCP Responds to a Proposal on Abortion Access

Cross-Posted on the Center for Gender & Sexuality Law Blog, and at Medium
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Press Release:
March 29, 2017

From:
Columbia Law School, The Public Rights Private Conscience Project

Subject:
Proposed New York State Health Regulation Contains Troubling Exemption: The Public Rights/Private Conscience Project Responds to a Proposal on Abortion Access

Contact:
Liz Boylan, eboyla@law.columbia.edu, 212.854.0167

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A proposed New York State regulation requiring insurance plans to cover “medically necessary” abortions contains a broad religious exemption that would undermine the state’s longstanding commitment to reproductive health. The exemption—which is not required by New York’s Constitution or laws— defines the term “religious employers” to include large nonprofits and even some for-profit companies. In the face of a national movement to enact anti-LGBTQ and anti-choice religious exemptions, the regulation would set a harmful precedent by accommodating religion at the expense of other fundamental liberty and equality rights. On Monday, March 27th,  Elizabeth Reiner Platt, Director of Columbia Law School’s Public Rights/Private Conscience Project (PRPCP) submitted a comment on behalf of the PRPCP to the NYS Department of Financial Services “to express [] deep concerns regarding the regulations’ expansion of New York’s existing definition of religious employers.”

Noting that religious liberty is already robustly protected in New York, PRPCP’s comment states, “allowing an organization that operates in the public sphere to violate neutral employee health and benefit laws serves to reduce, not enhance, true religious pluralism.  This is especially true when such accommodations single out particular religious tenets, such as opposition to abortion, for special protection.”

“The proposed regulation would allow organizations to treat a medically necessary procedure overwhelmingly obtained by women differently than any other type of care,” said Elizabeth Reiner Platt. “Rather than surrender to the troubling trend of protecting particular religious beliefs at the expense of reproductive health, New York should continue to be a national leader in guaranteeing access to comprehensive health care.”

The PRPCP’s mission is to address contexts in which religious liberty rights conflict with or undermine fundamental rights to equality and liberty through academic legal analysis. PRPCP approaches the developing law of religion in a manner that respects the importance of religious liberty while recognizing the ways in which broad religious accommodations may violate the First Amendment’s Establishment Clause.

Read the full letter from the Public Rights/Private Conscience Project here:
http://tinyurl.com/PRPCP-3-27

Read the NYS Department of Financial Services Proposed Amendment here: http://www.dfs.ny.gov/insurance/r_prop/rp62a48text.pdf

For more information on the PRPCP, visit the PRPCP’s webpage, here: http://tinyurl.com/PRPCP-Columbia

EEOC Proposed Guidance Shows We Can Protect Religious Freedom & LGBTQ Rights

Press Release:
March 23, 2017

From:
Columbia Law School, The Public Rights/Private Conscience Project

Subject:
EEOC Proposed Guidance Shows We Can Protect Religious Freedom & LGBTQ Rights

Contact:
Liz Boylan, eboyla@law.columbia.edu, 212.854.0167

March 23, 2017: While the President and Congress consider acts to expand religious exemptions at the expense of LGBTQ and other rights, a proposed federal regulation demonstrates that we can—and should—protect both religious and LGBTQ communities. The Public Rights/Private Conscience Project (PRPCP) at Columbia Law School submitted commentary this week commending the Equal Employment Opportunity Commission (EEOC) on their “Proposed Enforcement Guidance on Unlawful Harassment,” which protects the right of religious employees to discuss their beliefs while prohibiting religiously-motivated harassment in the workplace.

Professor Katherine Franke, Faculty Director for the PRPCP commented, “At a time when we are witnessing government officials engaging in both troubling violations of the Establishment Clause and blatant forms of religion-based discrimination, the EEOC’s proposed guidelines offer a reasoned and careful way to harmonize religious liberty and equality in the workplace.”

Elizabeth Reiner Platt, Director of the PRPCP elaborates, “The proposed guidelines respect both the right to express one’s religious beliefs and the right to a safe and productive work environment. This kind of carefully tailored religious accommodation protects all workers from discrimination.”

The PRPCP’s letter notes that nearly one in three transgender workers, and up to 43% of gay, lesbian, and bisexual people, have faced employment discrimination. The proposed EEOC guidelines “appropriately explain that Title VII’s duty to accommodate religion does not amount to an official sanctioning of religiously-motivated harassment-including against LGBTQ employees, who already face pervasive discrimination in the workplace.”

The EEOC’s responsibility to protect religious minorities and LGBTQ persons is of critical importance, as the Trump Administration continues to issue Executive Orders that roll back LGBTQ protections and express disapproval of Muslims. Of particular concern is a potential Executive Order on Religious Freedom. If signed, the order could provide a special license for those holding certain conservative religious beliefs— including opposition to same-sex marriage, sex outside different-sex marriage, and abortion—to violate any regulations that conflict with these beliefs.

The PRPCP’s mission is to address contexts in which religious liberty rights conflict with or undermine fundamental rights to equality and liberty through academic legal analysis.  PRPCP approaches the developing law of religion in a manner that respects the importance of religious liberty while recognizing the ways in which broad religious accommodations may violate the First Amendment’s Establishment Clause, which, “not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another.”[1]

Read the full letter from the PRPCP here: http://tinyurl.com/PRPCP-Columbia-EEOC-Letter

For more information on the PRPCP, visit the PRPCP’s webpage, here: http://tinyurl.com/PRPCP-Columbia

The EEOC’s Proposed Enforcement Guidance on Unlawful Harassment is available here: https://www.regulations.gov/document?D=EEOC-2016-0009-0001

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[1] https://www.law.cornell.edu/wex/establishment_clause

What Muslim Ban? A Religious Liberty Hearing in the Trump Era

Re-blogged from Religion Dispatches
Originally post, February 16, 2017

Today the U.S. House Judiciary Committee held a hearing on the “State of Religious Liberty in America.” What was perhaps most striking about the hearing was how dated many of the speeches and arguments felt—as if an Obama-era hearing was being held nearly a month into the Trump administration.

Three of the witnesses and many of the congresspersons who spoke conjured a world in which a hostile federal government seeks out well-meaning and peaceful Christians for baseless persecution, and in which the Civil Rights Act of 1964 represents the greatest threat to religious liberty. Meanwhile, other legislators and a lone witness desperately tried to redirect the conversation to the fact that President Trump campaigned on a platform of Islamophobia and recently admitted that he intends to prioritize immigration by Christian refugees. No speaker brought up other salient religious liberty issues, such as a recently-filed Religious Freedom Restoration Act (RFRA) claim challenging the Dakota Access Pipeline and an increased interest in using RFRA to resist immigration law.

The witnesses at the hearing included Kim Colby of the Christian Legal Society, Casey Mattox of Alliance Defending Freedom, Hannah Smith of Becket, and Rabbi David Saperstein, who served as United States Ambassador-at-Large for International Religious Freedom under President Obama.

The first three of these, all from conservative organizations that advocate for broad religious exemptions, pushed a narrative of religious persecution fueled by several fundamental misrepresentations: first, that efforts to combat anti-LGBTQ discrimination, or to provide access to contraception, constitute malicious anti-Christian harassment rather than attempts to expand access to jobs, services, housing, and health care; second, that groups seeking anti-LGBTQ and anti-choice exemptions want merely to “live-and-let-live” when in fact many of these organizations have consistently sought to ban LGBTQ relationships and abortion; and third, that issues around sex, marriage, and reproduction constitute the primary site for religious liberty disputes in the current political climate.

Sticking to their anti-Obama talking points, the speakers seem not to have grasped that it may become increasingly difficult to claim the mantle of “religious liberty” without speaking out against the Islamophobic rhetoric adopted at the highest levels of government, and the dramatic rise in anti-Muslim hate groups across the country.

While Representative Louie Gohmert of Texas sought in his remarks to pit religious minorities against each other, claiming that the legacy of the Holocaust was preventing Germany from adequately screening out Muslims that “hate Jews,” Representative Steve Cohen—Tennessee’s first Jewish congressperson—called Islamophobia the “latest form of dog-whistle politics” and noted that he himself had received an increased number of “jabs” for his faith in recent months. Thus Trump’s EO on immigration has shed a clear spotlight on what many advocates and legislators mean when they use the phrase “religious freedom”—and what they don’t.

Furthermore, no one in the room seemed to have fully grappled with the fact that expanding a right to religious accommodations may come back to haunt conservatives, as progressive faith leaders and religious practitioners search for ways to employ RFRA for their own spiritual practice, including helping Syrian refugees, protecting the environment, or providing sanctuary to undocumented immigrants.

None of this is to understate the continued relevance of anti-LGBTQ and anti-choice religious exemptions. Legislators have promised to re-introduce—and the President has promised to sign—the First Amendment Defense Act (FADA), which would sanction religiously-motivated discrimination against same-sex couples and unmarried pregnant and parenting persons. Many states continue to propose similar exemptions. And the recently-leaked Executive Order on religion, if signed, would provide legal cover for even large companies to defy laws that conflict with certain religious beliefs about sex, marriage, and reproduction.

But as significant as those measures remain to LGBTQ families, unmarried parents, and women, what was left unsaid during the hearing is of equal import: the religious right may not have a monopoly on the “religious freedom” platform for long, especially if they continue to ignore the new free exercise and establishment clause battles being waged in the courts, legislatures, and streets.

Unmarried and Unprotected: How Religious Liberty Bills Harm Pregnant People, Families, and Communities of Color

PRESS RELEASE

FROM: PUBLIC RIGHTS/PRIVATE CONSCIENCE PROJECT

RE: New Report Reveals That Religious Exemptions Laws Disproportionately Harm Communities of Color

MEDIA CONTACT: Kira Shepherd, 215-908-4825, ks3377@columbia.edu

New York, NY – A new report shows how recent legislative efforts to expand religious liberty rights, such as the First Amendment Defense Act (FADA), allow religious objectors to violate laws that protect against pregnancy, familial status, and marital status discrimination. These measures will disproportionately impact women of color who are more likely to become pregnant and raise families when unmarried. The report issued by Columbia Law School’s Public Rights/ Private Conscience Project (PRPCP), entitled Unmarried and Unprotected: How Religious Liberty Bills Harm Pregnant People, Families, and Communities of Color, highlights. the under-examined negative consequences of many religious exemption bills – how overly-broad religious exemption laws can be used to undermine sexual liberty and equality rights.

Many recently proposed religious exemptions bills, most notably FADA, which President Trump has highlighted as a top legislative priority, would confer special protections for the religiously motivated belief that sexual relations should only take place between married different-sex persons. By allowing religious objectors to defy all laws that conflict with their religious beliefs about sex and marriage, FADA and similar bills would significantly undermine the reach of federal and state anti-discrimination laws, including the Pregnancy Discrimination Act, Fair Housing Act, and Equal Credit Opportunity Act. Such exemptions would permit (if not encourage) religious objectors to engage in a wide range of discriminatory acts against unmarried pregnant and parenting persons, including denial of employment, housing, public benefits, and access to social services. An earlier report by PRPCP offers an overview of state and federal religious exemption bills.

Although these bills have the potential to harm anyone who has had sex when unmarried, people of color, especially African Americans, would particularly suffer their effects. This is because among all racial groups, African Americans are the most likely to have and raise children outside of marriage. According to data from the National Center for Health Statistics, 70% of African American children are born to parents who are not married, followed by 67% percent of Native American children, and 53% percent of Hispanic children, compared with 35% for children born to white women. In addition, because most women of color earn less than white women and are less likely to have financial cushions, religious exemptions laws that sanction employment, housing, and benefits discrimination stand to present women of color with far greater financial burdens.

“This report shows that policymakers across the nation are leveraging religion to push forward crude and discriminatory laws that impose extreme financial, dignitary, and emotional harm on women of color and their families,” said Kira Shepherd, Associate Director of PRPCP’s Racial Justice Program. “These laws could turn back the clock on some of the progress this country has made towards racial justice. They have the potential to take us back to a dark era where certain religious views were used as a justification for legal discrimination.”

PRPCP Director Elizabeth Reiner Platt said, “Women of color already face disproportionately high rates of pregnancy discrimination. In the name of protecting religious beliefs, FADA and similar state-level exemptions would impose yet another burden on many low-income families and families of color.”

Read the full report here.

PRPCP is a think tank based at Columbia Law School whose mission is to bring legal academic expertise to bear on the multiple contexts in which religious liberty rights conflict with or undermine other fundamental rights to equality and liberty. To learn more about the organization visit our website at: http://web.law.columbia.edu/gender-sexuality/public-rights-private-conscience-project.

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