Category Archives: Housing

Michigan Lawsuit Challenges Constitutionality of Religious-Based Discrimination by Child Welfare Agencies

Cross-posted to Medium.com

Last week, the ACLU filed a lawsuit in Michigan challenging a set of laws passed in 2015 that enable state-funded child welfare organizations to discriminate against prospective parents and children on the basis of the organization’s “sincerely held religious beliefs.” This case is one of the first to challenge a growing number of similar state laws that have passed recently. Specifically, Michigan’s laws state that “a child placing agency shall not be required to provide any services if those services conflict with, or provide any services under circumstances that conflict with, the child placing agency’s sincerely held religious beliefs.” In practice, faith-based service providers have been legally emboldened to deny adoptive and foster care opportunities to same-sex couples, including two sets of plaintiffs in the suit. The laws also seem to allow the child placement organizations to discriminate against other groups whose lives may not comport with the organization’s religious beliefs, including single or unmarried parents, LGBTQ youth under agency care, and those who subscribe to religious tenets that the organization does not support.

Michigan, like many other states, outsources child welfare services to private organizations through contracts and grants using taxpayer money. These organizations have significant responsibilities that the state would otherwise be obligated to undertake—including caring for and finding homes for children currently in state custody. Faith-based organizations make up nearly half of the agencies Michigan contracts with to do this work.

Legal and Constitutional Challenges

While the complaint does not challenge a privately funded agency’s right to place or care for children in accordance with their religious beliefs, the ACLU argues that because Michigan contracts with private agencies to provide services for children in state custody—and pays them with taxpayer funds—those agencies must meet the same legal and constitutional obligations as the state.

 In its complaint, the ACLU raises two important constitutional claims. First, they argue that Michigan’s actions violate the Establishment Clause of the First Amendment, which mandates a separation between church and state and thus bars the state from providing or refusing to provide government services based on religious criteria. They also argue that the Establishment Clause prohibits the state from “delegating a government function to religious organizations and then allowing those organizations to perform that government function pursuant to religious criteria,” which is exactly what these agencies are doing by denying services to same-sex couples based on religious belief. The ACLU also argues that the laws violate the Equal Protection Clause of the Fourteenth Amendment, which prohibits the state from discriminating on the basis of sexual orientation through “instrumentalities of the state.” In this case, because the faith-based organizations receive state funds specifically to provide the services in question, they qualify as instrumentalities of the state. Finally, the complaint alleges that the Michigan Department of Health and Human Services (DHHS), one of two agencies named in the lawsuit, is violating its own nondiscrimination protections by knowingly allowing child placing agencies to discriminate. DHHS’s Adoption Program Statement, also known as Publication 225, dictates that the department “will not discriminate against any individual or group because of race, religion, age, national origin, color, height, weight, marital status, sex, sexual orientation, gender identity or expression, political beliefs or disability.”

National Trends and Significance

The stakes in Michigan, and nationally, are significant. Michigan currently has 13,000 children in the foster care system, many of whom will wait years to find a family or will age out of the system without having been placed with one. This past year, Alabama, South Dakota and Texas passed similar laws, adding to the three states—North Dakota, Virginia, and Mississippi—that have already passed related laws.

Building off momentum in the states, Congress introduced the Child Welfare Provider Inclusion Act of 2017 (CWPIA) this year. Under that law, the federal government could withhold federal child welfare funds to states that choose not to contract with faith-based organizations, even if states terminate those contracts because the organizations have engaged in unlawful discrimination. If passed, CWPIA would put millions of dollars in federal funding at risk and make thousands of vulnerable children in foster and adoptive care even more vulnerable. Beyond the child welfare context, the Trump administration announced earlier this year that it will re-evaluate protocols and obligations for distributing federal funds to faith-based organizations across all federal agencies, likely resulting in significant consequences for a range of marginalized communities.

These child placement laws are part of national strategy adopted by faith-based organizations and national Christian Right organizations, including the Alliance Defending Freedom, to frame standard government oversight and enforcement of nondiscrimination protections as “discrimination”—not only in the child welfare context, but also where individuals and groups seek access to affirming healthcare, social services, education, housing, and employment. It is vital that advocates continue to challenge this problematic frame—in order to ensure that new and decades-old civil rights and nondiscrimination protections are not entirely nullified because legislatures are invested in giving unconstitutional supremacy to individual religious beliefs over all other rights. The Constitution requires that a proper balance be struck between individual religious beliefs and other fundamental guarantees under the Constitution—particularly where the government is instrumental in funding or facilitating discrimination.

Potential Consequences of Trump’s “Religious Freedom” Executive Order

Press Advisory: Potential Consequences of Trump’s “Religious Freedom” Executive Order

Date: May 4, 2017

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

Contact: Ashe McGovern | amcgovern@law.columbia.edu | 212.854.0167

Potential Consequences of Trump’s “Religious Freedom” Executive Order

President Trump is set to sign a far-reaching and constitutionally problematic executive order today. Although a draft of the final order has not yet been released, it will likely mirror, at least in part, a similar draft that was leaked earlier this year. While more detailed analysis will be necessary once the final order has been released, the leaked order raises the following issues. Specifically, the order:

Defines “people” to include for-profit corporations—even corporations that do not have an exclusively religious purpose. The order defines a “person” to be consistent with 1 U.S.C 1, which includes for-profit corporations.  This means that where the order affirms the right of “people” to act in accordance with a particular set of religious beliefs, including opposition to LGBTQ equality, it enables for-profit corporations to act in a discriminatory manner. These companies would be shielded from government intervention and enforcement of otherwise applicable laws, as long as they assert that their behavior is in keeping with a particular set of “religious beliefs.” The order also defines “religious organization” to include closely held for-profit corporations “operated for a religious purpose even if its purpose is not exclusively religious and is not controlled by or associated with a house of worship.” Thus an organization that is primarily engaged in secular activities, but claims to have some set of guiding religious principles—which the order fails to limit or define—could qualify as a religious organization. It would then be granted the protections religious organizations are given under this order.

Grants broad exemptions from federal civil rights and nondiscrimination laws to private and nonprofit organizations that are funded by the federal government to provide social services, education, healthcare, employment opportunities or other services to the general public. The order states that “persons and organizations do not forfeit their religious freedom” when contracting with the federal government in delivering services to the general public. This means that private organizations, even those that are funded by the federal government, will be shielded from claims that they have violated civil rights and nondiscrimination law as long as they claim their behavior is in accordance with a set of religious beliefs that they are free to define. This also means that the federal government will be unable to require religious grantees to provide publicly-funded services on a nondiscriminatory basis.

Enables federal contractors to impose their religious beliefs on their workers as a condition of employment. The order states that all agencies must provide exemptions to federal contractors and grantees consistent with religious exemptions found within the Civil Rights Act and Americans with Disabilities Act. These exemptions have been carefully tailored and limited by the courts, and do not currently apply to federal contractors. Applying them to federal contractors would impermissibly expand the exemptions, and allow federally-funded organizations to require that their employees follow particular religious beliefs or behaviors in order to remain employed.

Grants broad religious exemptions to federal employees acting in their official capacities as government workers, including workers that regularly interact with the public. The order requires agencies to “accommodate” the religious beliefs of federal employees, even where those beliefs conflict with their official duties as government employees. This could mean that a federal employee, who works for the Social Security Administration, for example, could refuse to process an application for a same-sex couple, a transgender person or a person of different faith, by stating that their religious beliefs prohibit them from doing so.

Directs relevant federal agencies to exempt any organization, whether religious or secular, from having to provide comprehensive reproductive services and healthcare to their workers. The order directs the Departments of Health and Human Services, Labor, and Treasury to issue an immediate interim rule that “exempts from the preventative care mandate…all persons and religious organizations that object to complying with the mandate for religious or moral reasons.” The order also directs HHS to take “appropriate actions” to ensure that “any individuals” who purchase health insurance on the individual markets, including federally facilitated and state sponsored health insurance, have the ability to purchase insurance that does not provide coverage for abortion and “does not subsidize plans that do provide such coverage.” This means that any for-profit employer can be granted a religious exemption from the requirement that they or their health plans provide contraceptive and family planning services. This would substantially broaden the Supreme Court’s holding in Burwell v. Hobby Lobby, which applied only to closely-held corporations. The order would also require state and federal exchanges to include plans that prohibit family planning services. Furthermore, it would preempt state laws that require health plans to cover birth control and abortion.

Allows federally-funded child welfare services and agencies to discriminate on any basis, including on the basis of race or religion, if doing so would “conflict with the organization’s religious beliefs.” This includes organizations that “provide federally funded child-welfare services, including promoting or providing adoption, foster, or family support services for children, or similar services.” This means that organizations that provide foster or adoptive services would be empowered to discriminate against same-sex couples, people of other faiths, unmarried people, or others whose relationships or behaviors do not conform to the organization’s particular religious beliefs.

Allows religious organizations and houses of worship to engage in political lobbying, while still maintaining their tax-exempt status. Specifically, this order would allow an organization that is speaking on a “moral or political issue from a religious perspective” to endorse or support political candidates. Currently, the tax code prohibits all 501(c)(3) organizations from endorsing or opposing political candidates. This provision would exempt religious organizations—and only religious organizations—from that mandate. The order also prohibits the Department of Treasury from imposing any tax penalty or burden to any organization that acts in accordance with beliefs that “marriage is or should be recognized as the union of one man and one woman, sexual relations are properly reserved for such a marriage, male and female and their equivalents refer to an individual’s immutable biological sex as objectively determined by anatomy physiology or genetics at or before birth, and that human life begins at conception and merits protection at all stages of life.”

Enacts far-reaching requirements on all federal departments and agencies to promptly rescind any rulings, directives, regulations, guidance, positions, or interpretations that are inconsistent with the order. This means that directives, rulings, regulations, guidance and interpretations that do not provide expansive religious exemptions may be rescinded or withdrawn by any agency or department of the federal government. This could include already existing protections enacted under the Obama administration for LGBTQ communities, women, and people of color, in their ability to seek access to reproductive services, employment, healthcare, education or social services.

Access a .pdf of this Press Advisory here.

For more policy analyses from the PRPCP, see our Policy Page, here.

Five Key Questions to Ask About the New Executive Order on Religious Liberty

Press Advisory: Five Key Questions to Ask About the New Executive Order on Religious Liberty

Date: May 3, 2017

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

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

Five Key Questions to Ask About the New Executive Order on Religious Liberty

In February, a draft of an Executive Order (EO) on religious liberty was leaked from the Trump Administration. This order would have had sweeping effects on the enforcement of federal law by all government agencies. In addition to harming LGBTQ communities, it would have had ramifications for unmarried pregnant and parenting women, patients seeking contraceptive care, religious minorities, cohabitating adults and others. President Trump is expected to sign an updated draft of the EO this week. The Public Rights/Private Conscience Project (PRPCP) has outlined five questions to ask when analyzing and reporting on the new order.

For more thorough analyses of religious exemptions, please visit our website, which includes numerous publications on the legal and policy implications of funding organizations that discriminate based on religion, religious exemptions’ effect on women of color, and an analysis of the First Amendment Defense Act. Additional analysis of the EO will also be posted to our website in the coming days.

1) Who does the EO apply to?  

Religious exemptions are special rights that allow religious practitioners to violate laws that conflict with their sincerely-held beliefs. A religious exemption, like the forthcoming EO, can apply to houses of worship, religious organizations, and/or individuals. It’s important to read the definition of “religious organization” carefully, however, as this term can often include large corporations that appear secular, like a hospital system or even a for-profit company. The term “person” is generally defined by federal law to include for-profit, publicly-traded companies like Walmart and ExxonMobil. Thus if the EO provides religious exemptions to all “persons,” this would go beyond the Supreme Court’s ruling in Burwell v. Hobby Lobby, which held that closely-held, for-profit companies are entitled to religious exemptions under the Religious Freedom Restoration Act (RFRA).

2) What religious beliefs are protected? 

Recent proposed and enacted religious exemptions, including a leaked draft of the EO, have singled out for special protection particular conservative religious beliefs about sex, marriage, and reproduction. These include the belief that: 1) marriage is the union of one man and one woman; 2) sexual relations are properly reserved to such a marriage; 3) male and female refer to an individual’s sex as determined at birth; and 4) human life begins at conception. Providing government support for particular religious beliefs raises serious Establishment Clause and Equal Protection concerns, as highlighted by a recent federal court opinion.

However other parts of the previously-leaked EO appear to apply far more broadly. For example, the requirement that federal agencies should “not promulgate regulations, take actions, or enact policies that substantially burden a person’s or religious organization’s religious exercise” could cover any religious belief.

3) Who is authorized to grant a religious exemption?

RFRA is a broad religious liberty law that prohibits the government from substantially burdening the exercise of religion unless doing so is the least restrictive means of furthering a compelling government interest. Typically, it is the judiciary’s responsibility to interpret and apply RFRA through litigation between a private party and the government. The leaked EO, however, orders federal agencies to interpret (RFRA) preemptively in deciding whether or not to enforce federal laws.

For example, under the EO the Equal Employment Opportunity Commission could interpret RFRA to exempt employers with a religious opposition to hiring transgender workers from compliance with Title VII of the Civil Rights Act. It could then decline to bring suits on behalf of, or even provide right-to-sue letters to, transgender workers who are discriminated against because of their employer’s religious beliefs. In such instances, it could be difficult to challenge an agency’s overly-broad interpretation of RFRA.

4) Who is harmed?

It’s clear that the proposed EO will harm many LGBTQ people. Less obvious, however, are the sweeping effects it is likely to have on many other groups. The leaked version of the EO specifically protects religious opposition to sex outside marriage; a provision that could sanction discrimination against unmarried pregnant and parenting women and cohabitating, unmarried adults more generally. The leaked EO would also gut the contraceptive coverage mandate of the Affordable Care Act, limiting coverage of necessary health care.  Religious practitioners, and especially religious minorities, could also be harmed. The EO would allow discrimination against those who do not share their employer’s religious beliefs. Further, it places government support behind particular religious beliefs that many religious observers do not share, such as the belief that a fertilized egg should be protected over the health of a pregnant person.

5) Are government contractors and employees included?

The leaked EO would provide broad religious exemptions to government contractors and employees, which poses particular Establishment Clause risks. It states that organizations do not “forfeit their religious freedom” when receiving government grants or contracts and orders agencies to provide religious exemptions to grantees. It also orders agencies to accommodate both federal employees and grantees who act upon the four particular religious beliefs outlined in question two, above. Thus the EO would allow faith-based organizations to place religious restrictions on the use of government funds, and to discriminate while carrying out government programs. It would also protect government employees who wish to act on their religious opposition to LGBTQ rights, extramarital sex, and reproductive health care.

Download a .pdf of this press advisory, here.

For more legal analyses from the Public Rights/Private Conscience Project, see our policy page, here.

Ben Carson’s “Judeo-Christian Nation” Vision Threatens Housing Equality

Today, former Presidential candidate Ben Carson is appearing before the Senate Judiciary Committee for a hearing on his nomination to become Secretary of the Department of Housing and Urban Development, or HUD. HUD is the federal agency tasked with administering and overseeing a wide range of vital housing programs and services, with a budget of over $32 billion. It is also the agency responsible for enforcing the federal Fair Housing Act, or FHA, which prohibits discrimination on the basis of race, color, religion, sex, familial status, or national origin, in the selling, renting or securing of funds for a dwelling.

Throughout his campaign for President, Carson argued that he would ground his role as a government official in his own religious principles—which he contends do not require him to protect the rights of lesbian, gay, bisexual, transgender and queer, or LGBTQ, people or Muslim communities, among other groups. Carson’s confirmation as Secretary of HUD would call into question whether this important role as HUD Secretary will be faithfully executed and whether the agency will continue to adequately protect those whose existence Carson deems to be in conflict with a properly organized “Judeo-Christian nation.

LGBTQ Communities

Despite the fact that the Supreme Court has made clear that the Fourteenth Amendment of the Constitution requires states to license marriage certificates to same-sex couples, Carson has stated emphatically that he does not support same-sex marriage, calling it an “extra right” and the LGBTQ people seeking it, “abnormal.” During his run for president, he strongly supported Kim Davis, the infamous Kentucky county clerk who refused to issue marriage licenses to same-sex couples, arguing that LGBTQ people should not be able to force their “way of life upon everybody else.” He has also asserted that Congress should fire federal judges who support marriage equality and pass a law to nullify the Supreme Court’s marriage equality decision, comparing LGBTQ people to those who practice bestiality and pedophilia.

Carson has also stated numerous times that transgender people’s desire to be legally recognized as their authentic selves is the “height of absurdity,” and should not be forced upon “normal people” by “secular progressives.” He also claims that gender is a biological fact, grounded in both biblical and genetic truths, despite contrary consensus from the country’s leading medical associations and the lived reality of actual transgender people.

Muslim Communities

Carson’s brand of biblical governance also distorts the lived experiences of Muslim Americans, despite his alleged commitment to religious freedom and liberty. Leading Muslim American groups have widely questioned the impact of Carson’s statements about Islam on his ability to govern fairly.

For example, in response to questions on whether he would support having a Muslim president, Carson claimed that “Muslims feel that their religion is very much a part of [their] public life and what [they] do as a public official, and that’s inconsistent with our principles and our Constitution,” going on to say he would not support a Muslim President unless they disavow their faith.  During a speech at Iowa University, Carson claimed that Islam is actually not a religion, but is instead “a life organization system” that has an “apocalyptic vision.”

These statements exist, ironically, in tandem with his insistence that “it is absolutely vital that we do all we can to allow Americans to practice their religious ways, while simultaneously ensuring that no one’s beliefs infringe upon those of others.”

Significant Gains May be Lost

Carson’s potential confirmation, and insistence on misunderstanding or ignoring constitutional and legislative protections for vulnerable communities, is both dangerous and will likely damage the protective framework created by the Fair Housing Act and regulations promulgated by HUD under the Obama administration.

For example, in 2012 HUD released urgently needed regulations to ensure LGBTQ people have equal access to housing and housing services, and in 2016, it extended those protections to emergency homeless shelters that were not previously covered.  These policies have been important not only because of the high rates of discrimination that LGBTQ people,  particularly transgender people of color, experience in housing, but also because LGBTQ people can still be denied housing and shelter in most states, absent federal protections from HUD. Further, Muslim Americans also report experiencing significant discrimination in housing, and under the Obama administration, both HUD and agencies including the Department of Justice, have been committed to forming partnerships to combat Islamophobia.

As Secretary of HUD, Carson would have the power to nullify and dismantle anti-discrimination gains made under the Obama administration. He would also have the ability to significantly weaken enforcement of the Fair Housing Act, and his statements indicate that he is likely to do just that for communities he deems unworthy of equal protection.