Category Archives: LGBTQ Rights

PRPCP Provides Testimony to New York City Council on Gender and Racial Equity Training

Press Release:
April 27, 2017

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

Subject:
Columbia Law School Think Tank Provides Testimony to New York City Council on Gender and Racial Equity Training

Contact:
Liz Boylan | eboyla@law.columbia.edu | 212.854.0167
Ashe McGovern | amcgovern@law.columbia.edu | 212.854.0161

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April 27, 2017—On Monday, April 24, Ashe McGovern, Legislative and Policy Director of Columbia Law School’s Public Rights/Private Conscience Project (PRPCP) testified before the New York City Council Committee on Women’s Issues on a bill that would require several city agencies to undergo training on “implicit bias, discrimination, cultural competency and structural inequity, including with respect to gender, race and sexual orientation.”

McGovern’s testimony outlines the merits of the bill, and encourages the council to expand its requirements to all city agencies, as well as to private city contractors. Private organizations that contract with the city receive billions of taxpayer dollars and are the primary source of many city-funded services. Any bill intended to combat discrimination within city programs, therefore, should apply to contractors. In addition, the current bill mandates training for only three city agencies—the Department of Health and Mental Hygiene, the Administration for Children’s Services and the Department of Social Services/Human Resources Administration—despite the fact that all agencies and their grantees are in need of the proposed training.

The testimony also draws attention to the unique legal concerns and challenges that arise when faith-based organizations—which are exempted from certain provisions of New York City’s human rights law—contract with the city to provide vital services. PRPCP explains that clear training on all contractors’ legal duty to provide comprehensive and nondiscriminatory care is essential to ensuring that the city does not use public funds to subsidize discrimination.

“While this bill is an important step in the right direction, it is vital that all city agencies, and the private organizations they contract with, be subject to cultural competency training and more stringent oversight,” said McGovern. “Last year alone, New York City provided over $4 billion to private contractors so that they could meet the city’s social and human service’s needs. LGBTQ communities, those seeking reproductive healthcare, and communities of color experience unique vulnerabilities in accessing these vitally important services. The Council should be cognizant of those vulnerabilities and adopt proactive measures to ensure that all agencies and contractors, whether faith-based or secular, do not engage in discriminatory behavior.”

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 transcript of McGovern’s testimony, here: http://tinyurl.com/McGovern424Testimony

Access a .pdf of this Press Release here: http://tinyurl.com/PR-McGovern-Testimony-424

See the agenda of the April 24 Committee meeting here: http://tinyurl.com/April24NYCCouncilAgenda

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

Columbia Law School Think Tank Submits amicus brief in Transgender Rights Case

Press Release:
April 25, 2017

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

Subject:
Columbia Law School Think Tank Submits amicus brief in Transgender Rights Case

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

______________________________________________

April 25, 2017 Columbia Law School’s Public Rights/Private Conscience Project (PRPCP) and Willkie Farr & Gallagher LLP filed an amicus brief yesterday with the Sixth Circuit Court of Appeals in a case that raises the important question of whether employers can use religious liberty arguments to avoid compliance with federal non-discrimination laws. Specifically, it considers whether employers have the right to engage in sex discrimination if motivated by religious principles. The case, Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes Inc., was brought on behalf of Aimee Stephens, a funeral home director who was fired after she came out to her employer as a transgender woman. In an unprecedented decision, the trial court held that the funeral home owner’s religious opposition to Stephens’ gender transition and identity entitled the employer to an exemption from Title VII of the Civil Rights Act, which prohibits sex discrimination in the workplace.

The District Court’s opinion rested on an interpretation of the Religious Freedom Restoration Act (RFRA), which prohibits the federal government—in this case, the Equal Employment Opportunity Commission (EEOC)—from substantially burdening religious practice unless doing so is the least restrictive means of furthering a compelling government interest. According to the court, the EEOC should have advanced its interest in nondiscrimination in a way that was less burdensome to the employer’s belief that he “would be violating God’s commands if [he] were to permit one of the [Funeral Home’s] funeral directors to deny their sex while acting as a representative of [the Funeral Home].”

PRPCP’s amicus brief explains that the trial court’s interpretation of RFRA is unconstitutional. By requiring Stephens to adhere to her employer’s religious beliefs about gender, the accommodation would violate the Establishment Clause of the First Amendment, which protects individuals from having to bear the significant costs of a religious belief they do not share. In addition, the accommodation would force the EEOC to participate in—rather than fight against—sex discrimination.

“While federal law provides robust protections to religious liberty, those rights are not absolute,” said Katherine Franke, Sulzbacher Professor of Law and Faculty Director of PRPCP. “The right to religious liberty reaches its limit when the accommodation of religious liberty results in the imposition of a material burden on third parties, as is the case here.”

“The District Court opinion transforms the EEOC from an agency that prohibits discrimination to one that enables and enforces it,” said Elizabeth Reiner Platt, Director of PRPCP. “If upheld, this decision will devastate one of the country’s most important civil rights protections.”

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 a copy of the full amicus brief here:
http://tinyurl.com/PRPCP-4-24

Read the district court opinion here: http://www.mied.uscourts.gov/pdffiles/14-13710opn.pdf

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

God in Captivity: A talk with Professor Tanya Erzen

On Monday, March 27th, 2017, the Public Rights/Private Conscience Project hosted Tanya Erzen to speak as part of a series of lunchtime lectures on Law, Rights, and Religion at Columbia Law School. Tanya Erzen is the Executive Director of the Freedom Education Project of Puget Sound, and Associate Research Professor of Religion and Gender Studies at the University of Puget Sound; her work focuses on intersections of religion and faith in American politics and popular culture, with a focus on religion and conservatism in U.S. carceral systems. The Public Rights/Private Conscience Project engaged Professor Erzen in discussion on her recently published book from Beacon Press, God in Captivity: The Rise of Faith-Based Ministries in the Age of Mass Incarceration[1]. Following the program, Kira Shepherd, Associate Director of the Public Rights/Private Conscience Project’s Racial Justice Program conducted a brief interview with Professor Erzen on the experiences that inspired her to write God in Captivity, the history of faith-based prison ministries in the United States, and the social and political implications of the prison industrial complex’s partnerships with faith-based prison ministries.

Watch the video of this talk here, and read the full transcript of Kira’s discussion with Professor Erzen, below.

Kira Shepherd:

Hi, Thanks for joining us today at the Public Rights/Private Conscience Project. Today we had a talk with Tanya Erzen, who talked about her book, God in Captivity: The Rise of Faith Based Ministries in the Age of Mass Incarceration. Can you tell me what drove you to write the book, and can you tell me a little more about what the book is about?

Tanya Erzen:

I actually lived in New York for quite some time and I taught – I was at Barnard when I had my Post-Doc., and at that time I taught in a women’s prison on the West Side Highway called Bayview[2], and I think that what struck me, being there, was that so often the groups that you saw coming in besides family members and loved ones were faith-based groups in such high numbers. Around that time, the same person who got me interested in teaching sent me a news article – it was about 2003 – that said that Florida had actually transformed all of their state prisons to faith-based character institutions[3]: this idea that rehabilitation would happen through some kind of relationship to a faith-based group or a religious tradition.

And what was interesting is that for so many years when you talked to people in prison, especially administration, but in the general public if you said, “A person in prison became religious” it was treated or met with a lot of skepticism – it was almost considered the ultimate con, right? “Everybody gets religion in prison”… and there was a real shift in that suddenly prison administrations were touting faith-based ministry and faith-based groups as the most effective form of rehabilitation and reform for the individual. It really comes out of my teaching college in a prison, and running the college program, and also really thinking about how we use the idea of transformation through education, and that’s the same language that faith-based groups use. What happens on the ground that’s different between education groups and faith-based groups, and how are they distinct – that’s a question I’ve been trying to consider.

Kira Shepherd:

In the book you talk about how there was a policy shift that led to the rise of faith-based ministries: Can you tell me a bit more about that shift – when it happened, and why it happened?

Tanya Erzen:

Sure. Really, I mean, it starts in the 1970s. Chuck Holston, who was an aide to Nixon and went to prison for Watergate-related crimes came out of prison as a born-again Christian, wrote a book about it, and founded Prison Fellowship Ministry, which is the largest faith-based prison ministry group in the country, and they’re all over: both running entire wings of prisons and operating programs that are based on becoming born-again as an evangelical as a part of being rehabilitated. It is a time when the prison population is increasing at a dramatic rate and a lot of states are cutting budgets, because they can’t pay for services. So at the same time you have the rise of non-denominational conservative Christianity eclipsing mainstream main-line Protestantism as their congregations are dying, and a lot of these groups are set up to have small groups that go and do work in different sectors, and so there’s this whole corps of volunteers who could come in. And then also, policy-wise, more recently in the late 90s and 2000s, you have people who knew Chuck Holston and Pat Nolan and who work with Prison Fellowship Ministry, they’re lobbying Republicans around this idea that they have to address criminal justice reform as an issue of public safety and fiscal responsibility. So for the first time, instead of people being, you know, tough on crime, they’ve shifted the discourse to being “smart” on crime or “right” on crime. And that you have conservatives looking to dismantle or to reform prisons and to institute criminal justice reforms whether through better parole systems, different sentences for people who commit non-violent crimes, working to end sentences for juveniles and so forth in collaboration with more progressive groups like the ACLU, but the rationale for them is always sort of different and it has really transformed the landscape of criminal justice reform around the country and you have big donors like the Koch brothers who are funding conferences on criminal justice reform and trying to assert changes; that movement really emerges from the work of evangelical ministries, and evangelical ministries support the rationale of that conservative agenda because they’re doing the work of the state, but they are doing it as volunteers through – and in – a privatized manner: So if you see the prison as this over-bloated bureaucracy that sucks too much money, faith-based groups are the ideal solution, because they come in and they argue that they can do this more effectively and at a cheaper cost.

Kira Shepherd:

Can you talk about the impact that these ministries have on LGBTQ communities in prison?

Tanya Erzen:

I would say the impact is incredibly negative. There aren’t a lot of support groups to begin with for the LGBT men and women in prison and often, those groups, people are very marginalized. Because of laws like PREA (Prison Rape Elimination Act) [4], prisons have become really obsessed, legally, with questions of boundaries and any kind of reporting around gender. I think what that has done also has sort of squashed the possibility of certain people being out about their sexuality and meeting, but a lot of faith-based ministries have very socially conservative principles and theologically conservative principles in which they don’t see being gay as a legitimate way of being. So if you are a self-identified gay person, a gay man, or a lesbian or a trans person, you aren’t allowed to participate in ministries in many ways, and as I mentioned in my talk[5] they have formed ex-gay ministries to try to convert people from gay to straight, as fraught and as complicated as that is….I think, you know, this just furthers this idea of faith-based ministries… A “real” Christian Ministry – if you’re looking at it from a principle of forgiveness or justice – would [have a mission of] “I’m going to help and support everyone” as a principle. What [faith-based prison ministries] are doing is saying, “I will support and help you: I’ll give you education, I’ll help you with re-entry, as long as you believe what I believe” – and that is coercive, and it’s discriminatory.

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[1] Beacon Press. http://www.beacon.org/God-in-Captivity-P1256.aspx. Retrieved 30 March 2017.

[2] History of Bayview Correctional Facility – A Vertical Institution: https://web.archive.org/web/20041205091718/http://www.geocities.com/MotorCity/Downs/3548/facility/bayview.html. Kasper, Ed (November 2001). “History of Bayview CF – A vertical institution”. New York State Correction Officer Informational Page. Archived from the original on 5 December 2004. Retrieved 29 March 2017.

[3] Florida State Statute 944.803, entered in 2003, available at www.leg.state.fl.us: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0900-0999/0944/Sections/0944.803.html. Retrieved 29 March 2017.

[4] Information on PREA – from the PREA Resource Center: https://www.prearesourcecenter.org/about/prison-rape-elimination-act-prea. Retrieved 30 March 2017.

[5] Video from Tanya Erzen’s full talk on God in Captivity: The Rise of Faith-Based Prison Ministries in the Age of Mass Incarceration with the Public Rights/Private Conscience Project at Columbia Law School is available here: https://www.facebook.com/emboylan1/videos/404885809867240/. Retrieved 30 March 2017.

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

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.