Category Archives: LGBTQ

Attorney General Session’s “Religious Liberty Task Force”: DOJ Evangelists for the Religious Right

Cross-posted to Medium.com
On Monday, July 30th, the Department of Justice (DOJ) held a “Religious Liberty Summit” at which Attorney General Jeff Sessions announced that the Department would be developing a “Religious Liberty Task Force.” Attorney General Sessions explained that the task force “will help the department fully implement our religious liberty guidance” — referencing a DOJ guidance document on “Principles of Religious Liberty” issued in October of 2017 — “by ensuring that all Justice Department components… are holding that guidance in the cases they bring and defend, the arguments they make in court, the policies and regulations they adopt, and how we conduct our operations.”

Attorney General Sessions notes that this is the “next step” for the DOJ and the Trump administration to ensure the application of the “religious liberty guidance” issued by the Department of Justice in the fall of 2017. The guidance document that the task force is charged with implementing was promulgated in accordance with President Trump’s “Executive Order Promoting Free Speech and Religious Liberty.” President Trump signed the Executive Order in question in a ceremony on May 4th, 2017, the “National Day of Prayer,” in the White House Rose Garden. The guidance document, “Principles of Religious Liberty” was issued on October 7, 2017, from Attorney General Sessions in a Memorandum for all Executive Departments and Agencies, available here.

While “religious liberty guidance” and the creation of a “Religious Liberty Task Force” may sound innocuous, they are far from it; the guidelines speak to an interpretation of religious liberty that is frequently used by the Religious Right to deny and undercut the rights of marginalized individuals in the United States. In a statement released by the Public Rights/Private Conscience Project on the “religious liberty guidance” last fall, our scholars analyzed and characterized its edicts as such:

This document… misinterpret[s] the meaning and scope of religious liberty under the Constitution and the federal Religious Freedom Restoration Act (RFRA), demonstrating this administration’s continued commitment to elevating a particular set of religious beliefs over the health, safety and equality rights of women, LGBTQ[+] people, people of color, and religious minorities.

The “Principles of Religious Liberty” memorandum issued by the Department of Justice in October 2017 contains several examples of how the rhetoric of “religious liberty” has been mobilized by the Christian Right to enable individuals and businesses to deny rights and services to persons based on their religious beliefs. This insidious tactic undercuts equity and equality measures guaranteed by the constitution and a wide range of national and state laws. Cases such as Masterpiece Cakeshop — wherein baker Jack Phillips refused to bake a cake for the wedding of a same-sex couple on the basis that doing so would unduly burden his religious beliefs– have raised the visibility of this issue. What’s at stake is far more serious than cake, however: Similar cases include that of EEOC v. Harris, in which a funeral home fired Aimee Stephens, a transgender employee, for expressing her gender identity through clothing. The Funeral home asserted that Stephens’ gender expression was in violation of the Funeral home’s “closely held religious beliefs.” While the Sixth Circuit Court of Appeals ruled in favor of the Equal Employment Commission and Aimee Stephens, a petition has been filed for the case to be heard by the Supreme Court.

The Public Rights/Private Conscience Project has written extensively on the DOJ guidance in the DOJ Memorandum on “Principles of Religious Liberty,” as well as President Trump’s “Executive Order Promoting Free Speech and Religious Liberty,” which instructed Attorney General Sessions to develop the guidance. Our analyses have demonstrated how the Trump Administration and the Attorney General have sought to coopt the meaning of “religious freedom” and “religious liberty” in order to privilege certain conservative religious views as a form of white Christian supremacy:

In April of this year, the Public Rights/Private Conscience Project co-authored a report with the Center for American Progress, “Religious Liberty for a Select Few.” The report, available here, highlights how the actions of the Justice Department enable and promote discrimination in and by the Federal Government using the tools of the Justice Department and the Executive Branch.

The report, “Religious Liberty for a Select Few” follows a series of earlier works produced by the Public Rights/Private Conscience Project, which address concerns about how the Trump Administration is using a limited vision of “religious liberty” to promote a specific agenda. These works are outlined below:

· In October 2017, the Public Rights/Private Conscience Project published a statement critiquing Attorney General Sessions “Principles of Religious Liberty” issued in a DOJ Memorandum for all Executive Departments and Agencies on October 7th, 2017.

· In July 2017, Ashe McGovern, Legislative and Policy Director of the Public Rights/Private Conscience Project, wrote on the potential harms of the — at the time — anticipated guidance on religious freedom from Attorney General Sessions, in a blog post, “Trump’s ‘Religious Freedom’ Guidance Likely Imminent and Harmful to LGBTQ Communities and Others.”

· In May 2017, Elizabeth Reiner Platt, Director of the Public Rights/Private Conscience Project, wrote a blog post addressing President Trump’s Executive Order on Religious Liberty and Freedom of Speech titled, “’Religious Liberty’ Executive Order Will Limit, Not Enhance, Religious Freedom.”

· In May 2017, the Public Rights/Private Conscience Project released a joint statement with the Council on American Islamic Relations addressing concerns about the potential impacts of President Trump’s “Executive Order Promoting Free Speech and Religious Liberty” on religious minorities, available here.

· In January 2017, the Public Rights/Private Conscience Project published “Church, State, and the Trump Administration,” a report focusing on the promises of the Trump campaign related to faith and religion, and the actions undertaken during President Trump’s early tenure in regards to faith and the separation of Church and State.

The DOJ’s “Religious Liberty Task Force” will no doubt continue the administration’s work of advancing particular conservative religious beliefs about sexual health and autonomy, intimate and family partnerships, and pregnancy under the guise of religious liberty. This so-called “freedom” comes at a steep price, however, particularly for women, sexual and gender minorities, people of color, and religious minorities.


A full list of the Public Rights/Private Conscience Project’s writing on the way the Trump Administration and Attorney General Sessions actions regarding “Religious Freedom” and “Religious Liberty” follows below:

Report: Religious Liberty for a Select Few: The Justice Department Is Promoting Discrimination Across the Federal Government
Sharita Gruberg, Frank J. Bewkes, Elizabeth Reiner Platt, Katherine Franke, Claire Markham
April 3, 2018
https://www.americanprogress.org/issues/lgbt/reports/2018/04/03/448773/religious-liberty-select/

Columbia Law Experts Denounce DOJ Religious Liberty Guidance as Attack on Religious Liberty and Fundamental Equality Rights
The Public Rights/Private Conscience Project
October 6, 2017
http://blogs.law.columbia.edu/publicrightsprivateconscience/2017/10/06/columbia-law-experts-denounce-doj-religious-liberty-guidance-as-attack-on-religious-liberty-and-fundamental-equality-rights/

Trump’s “Religious Freedom” Guidance Likely Imminent and Harmful to LGBTQ Communities and Others
Ashe McGovern
July 20, 2017
http://blogs.law.columbia.edu/publicrightsprivateconscience/2017/07/20/religiousfreedomharmslgbtq/

Joint Statement by CAIR and PRPCP on President Trump’s EO on “Religious Liberty
The Council on American-Islamic Relations of New York and Columbia Law School’s Public Rights/Private Conscience Project
May 15, 2017
http://blogs.law.columbia.edu/publicrightsprivateconscience/2017/05/15/joint-statement-by-cair-and-prpcp-on-president-trumps-eo-on-religious-liberty/

“Religious Liberty” Executive Order Will Limit, Not Enhance, Religious Freedom
Elizabeth Reiner Platt
May 4, 2017
http://blogs.law.columbia.edu/publicrightsprivateconscience/2017/05/04/religious-liberty-executive-order-will-limit-not-enhance-religious-freedom/

Church, State, and the Trump Administration
The Public Rights/Private Conscience Project
January 30, 2017
https://web.law.columbia.edu/sites/default/files/microsites/gender-sexuality/PRPCP/prpcp_trump_church_state.pdf

Columbia Law Scholars answer key questions regarding SCOTUS Decision in Masterpiece Cakeshop

Monday, June 4, 2018

After the U.S. Supreme Court agreed to hear the case of a Colorado baker who refused to make a cake for the marriage of a gay couple, nearly 100 “friend of the court briefs” were filed by groups on every side of the political and religious spectrum, including the Public Rights/Private Conscience Project at Columbia Law School

Professor Katherine Franke is the Sulzbacher Professor of Law, Gender and Sexuality Studies at Columbia University. Elizabeth Reiner Platt is the Director of the Public Rights/Private Conscience Project. Below, they answer 5 key questions regarding the judgment the Supreme Court of the United States delivered this morning in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission.

A version of this Q & A may be accessed from Columbia University News, here.


Q: How did the Supreme Court decide the Masterpiece Cakeshop case today?

A: Justice Kennedy ruled for a 7-2 majority that principles of religious liberty must be harmonized with principles of equality.  The Court’s ruling is quite narrow, actually, turning on the fact that some members of the Colorado Civil Rights Commission (the body that ruled on the case in the first instance) made statements that the Court thought demonstrated hostility toward religion.  So Justice Kennedy framed the issue as one of state-based discrimination against people who hold particular religious views, not as about the rights of same-sex couples or LGBT rights more generally.

Q: What should we make of the way the Court framed the issue?

A: Many people were disappointed to see the Court rule in favor of Jack Phillips, the Christian baker who refused to bake a wedding cake for two men because of his religious beliefs. They see the Court’s opinion as a defeat for the rights of LGBTQ people.  It’s important to recognize, however, that the opinion does not actually limit antidiscrimination law. The Court explained, “It is a general rule that [faith based] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”

In fact, the opinion contains soaring language recognizing the importance of gay rights: “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason, the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.”

Q: You wrote a “friend of the Court” brief in the case, does today’s decision reflect the arguments you made?

A: The Public Rights/Private Conscience Project and Muslim Advocates wrote a brief in this case on behalf of 15 religious minority and civil rights groups, arguing that religious liberty principles must be harmonized with equality principles, and that the rights of religious objectors find their limit when they undermine fundamentally important equality principles, such as Colorado’s anti-discrimination law.  We took the position that these are mutually reinforcing values, and we are pleased to see that the Court’s decision in Masterpiece Cakeshop embraces this approach, despite setting aside the ruling against Jack Phillips.

For example, the Court found that while a religious exemption allowing clergy to decline to perform a same-sex wedding may be appropriate “as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.”

Q: There are many similar cases making their way to the Supreme Court, where business owners have sought a religious exemption from complying with anti-discrimination laws.  How does today’s decision in Masterpiece Cakeshop affect those other cases?

A: None of those other cases include evidence of any bias against faith-based objectors, as was the case in Masterpiece Cakeshop.  So the big questions these cases raise— can a person’s sincerely held religious beliefs be used to avoid compliance with anti-discrimination laws— remains unanswered.  There were, however, some important signs in Justice Kennedy’s decision today that point in the direction that religious objectors may not win in those cases.  The Court cited approvingly a case from the 1960s that found that a restaurant owner could not deny service to African Americans even if he had a sincerely held religious reason for doing so.  So that principle remains as an important limit on religious liberty rights in contexts where overarching equality principles would be undermined by the overly broad deference to religion.

Q: What’s at stake in the tension between religious liberty and LGBTQ equality?

A:  There are two very radical ideas lying behind Jack Phillips’ legal claim here – both of which originate with his lawyers, the Alliance Defending Freedom.  The first is to establish the idea that some constitutional rights are more important than others.  In their view religious liberty rights are more fundamental than any other rights, and thus should occupy the top tier of constitutional protection.  The rights of LGBT people, women, people of color and others, in their view, should be seen as second tier, lower priority rights, and should yield when in conflict with religious liberty.  This approach to constitutional law derives from something we call “natural law” – that God’s law is supreme and no man-made law can be superior to God’s law.  This amounts to a radical theocratization of the constitution, a document that was intended to be an adamantly secular social contract.  The second idea is one that ideological conservatives have been committed to for generations: that the government cannot, indeed may not, tell business owners who they can serve and how they can run their businesses.  These folks objected to civil rights laws that prohibited race discrimination by businesses in the 1960s and have never accepted the fact that a business must serve all people, regardless of race, religion or sexual orientation, for instance.  They are using religion-based resistance to same-sex marriage in order to weaken the larger national commitment to enforcing non-discrimination laws in business settings.  In this sense, the Masterpiece Cakeshop case is the logical next step after the Hobby Lobby case, where a business owner objected to the federal government mandating the kind of employee benefits it had to provide.

PRESS RELEASE: New Report Details Consequences of Trump Administration’s Overly Broad Guidance on Religious Liberty

FOR IMMEDIATE RELEASE: April 3, 2018

SUBJECT:
New Report Details Consequences of Trump Administration’s Overly Broad Guidance on Religious Liberty

CONTACTS:
Elizabeth Boylan, 212-854-0167, eboyla@law.columbia.edu
Sam Hananel, 202-478-6327,shananel@americanprogress.org

April 3, 2018, Washington, D.C.  Obama-era rules prohibiting discrimination in dozens of federal programs could be undermined by the Trump administration’s controversial guidance on religious liberty, according to a new report from the Center for American Progress and Columbia Law School’s Public Rights/Private Conscience Project.

The report’s authors identified at least 87 regulations, 16 agency guidance documents, and 55 federal programs and services funded by taxpayer dollars that could be undercut by the October guidance issued by Attorney General Jeff Sessions. These include programs that provide health care, shelter, foreign aid, and assistance to victims of violence as well as veterans.

From unfair treatment to outright exclusion, the Trump administration has misinterpreted religious liberty in a way that harms the fundamental rights of women, LGBTQ people, and religious minorities. Under the new guidance:

  • LGBTQ survivors of domestic violence could be turned away from federally funded domestic violence shelters.
  • Organizations contracting with the government could force any unaccompanied LGBTQ immigrant children in their care into conversion therapy.
  • A government contractor could cite a religious belief as a reason to refuse services without risking the loss of federal funding—for example, not housing LGBTQ youth under federal programs.
  • Hospital workers could refuse to provide emergency contraception to sexual assault survivors by claiming that it conflicts with a religious belief.
  • Clinics abroad that are funded by the U.S. government could refuse to treat LGBTQ people living with HIV.

“This guidance is a deliberate attempt to undermine the legal rights and dignity of LGBTQ people,” said Sharita Gruberg, associate director of the LGBT Research and Communications Project at the Center for American Progress and co-author of the report. “It uses the guise of religious liberty to advance discrimination.”

“Jeff Sessions’ guidance document, which dramatically misinterprets religious exemption law, is already being used to limit access to reproductive health care,” said Elizabeth Reiner Platt, director of the Public Rights/Private Conscience Project and co-author of the report. “As agencies continue to implement it, the guidance threatens to limit enforcement of an enormous range of health, employment, and anti-discrimination protections.”

Religious liberty is a foundational American value. The Trump administration is abusing religious exemptions and disregarding the First Amendment’s prohibitions against the government preferring particular religious viewpoints. This guidance would allow federal officials, service providers, and corporations to use their religious views to infringe on the rights of others.

President Donald Trump’s ideologically motivated appointees are likely to carry out this guidance across the federal government by issuing new rules, reinterpreting existing rules, or reallocating federal funds to faith-based service providers. At the same time, rather than upholding the rights of LGBTQ people and women, Sessions has directed Justice Department lawyers to defend those who would cause harm to third parties.

Read the report: “Liberty and Justice for a Select Few: Jeff Sessions’ Guidance on Religious Liberty Is Promoting Discrimination Across the Federal Government” by Sharita Gruberg, Frank J. Bewkes, Elizabeth Platt, Katherine Franke, and Claire Markham.

For more information or to talk to an expert, please contact Sam Hananel at shananel@americanprogress.org or 202-478-6327, or Liz Boylan at eb2596@columbia.edu or 212-854-0167.

The Public Rights/Private Conscience Project’s 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.  We undertake approaches to the developing law of religion that both respects the importance of religious liberty and recognizes the ways in which too broad an accommodation of these rights threatens Establishment Clause violations and can unsettle a proper balance with other competing fundamental rights.  Our work takes the form of legal research and scholarship, public policy interventions, advocacy support, and academic and media publications.

The Center for American Progress is a nonpartisan research and educational institute dedicated to promoting a strong, just and free America that ensures opportunity for all. We believe that Americans are bound together by a common commitment to these values and we aspire to ensure that our national policies reflect these values. We work to find progressive and pragmatic solutions to significant domestic and international problems and develop policy proposals that foster a government that is “of the people, by the people, and for the people.”

Many doctors are motivated by their moral and religious beliefs to provide abortions. Why doesn’t HHS care about their consciences?

Cross-Posted to the Public Rights/Private Conscience Project’s Medium Page.

Related: PRPCP’s Comment submitted to the U.S. Department of Health and Human Services, here.

Over the past few years, the news has been filled with stories of religious hospitals that ban abortions even during medical emergencies, pharmacists who refuse to fill prescriptions for emergency contraception, and even a certain large arts and crafts chain store that objects to providing contraceptive insurance coverage for its employees. Conservative groups have advocated for increasingly broad laws and policies that allow such objectors to refuse to provide a wide range of medical care, regardless of their patients own beliefs or medical needs. Most recently, the Department of Health and Human Services (HHS) announced the creation of a new rule that would give medical providers, insurance companies, and employers a broad right to deny abortion, sterilization, contraception, LGBTQ+ health care, and other services that conflict with their religious or moral beliefs.

With such a pervasive focus on religious health care refusals, it’s easy to forget that many healthcare professional’s religious and moral beliefs point in the opposite direction— supporting the right to individual bodily autonomy and access to medically appropriate and comprehensive health care. Unfortunately for such providers, the proposed HHS conscience rule entirely fails to protect them. Under the rule, while no health care employer can require its employees to participate in abortion, sterilization, or certain other services, employers are free to prohibit employees from providing this care.

For countless doctors and nurses, the dictates of their conscience drive them to provide abortion care, despite the risks this poses to their professional career and personal safety. To give just a few examples: Dr. George Tiller, who was murdered by an anti-abortion extremist while serving as an usher in his Lutheran Church, referred to his work providing abortion care as a “ministry.” Two members of Dr. Tiller’s staff echoed this view, stating respectively, “I felt I was doing the Lord’s work,” and “God put me here to do this work.” Dr. LeRory Carhart, an abortion provider and observant Methodist, stated in an interview, “I think what I’m doing is because of God, not in spite of God.” Dr. Sara Imershein has described providing abortion care as a “mitzvah,” and said that “No one should be able to step in the way of what I consider to be my moral obligation.” Last year, Dr. Willie Parker wrote an entire book describing his spiritual journey toward becoming an abortion provider and activist. Dr. Curtis Boyd, a Unitarian, first became an abortion provider when he was asked by a minister and member of the Clergy Consultation Service to perform the procedure illegally prior to Roe v Wade. Dr. Boyd explained, “Finally, my work had the larger meaning I’d sought. My religious ideals became immediate and personal.”

While some providers describe their work in explicitly religious terms, others portray it as a moral or ethical duty. Dr. Leah Torres, for example, has discussed her “moral and ethical obligation” to provide abortion care. Dr. David Gunn, who was also murdered by an anti-abortion terrorist, traveled 1,000 miles and worked six days a week providing abortion care because, according to his son, he believed “people would suffer without care if he refused.” Dr. Warren Hern has described his decision to provide abortion care even at great personal risk in deep-seated moral terms, stating that “women need my help” and that “If women are not free to make decisions about their own lives and health, they are not free. And if women are not free, none of us are free.”

As PRPCP explains in a comment we submitted to HHS this week, the agency’s proposed rule grants sweeping protections to those who would deny health care to patients, while doing nothing to protect those whose moral or religious duty to provide care is prohibited by institutional policies. Not only do such imbalanced protections fail to safeguard patients’ health, they also fail to ensure the very right the rule claims to defend—the right of conscience.

Not only is this imbalance unfair, it is legally suspect. If nothing else, the religious freedom guarantees of the First Amendment mandate that the government not take sides in a religious debate, or advance particular religious views at the expense of others. The proposed rule does exactly that—providing near-absolute protections for anti-choice religious views but extremely limited rights for pro-choice religious beliefs. (While providers cannot be punished for their activities outside the scope of their employment, they can be prohibited from acting on their religious obligation to provide comprehensive care within their job.)

The administration’s asserted interest in guaranteeing the right of “conscience” is belied by its one-sided policy, which protects only those to seek to deny health care and not those who seek to provide it.

MEDIA ADVISORY: Columbia Law School Scholars Submit Comment on Proposed HHS Rule

SUBJECT: HHS Rule Fails to Protect the Conscience of All Health Care Providers | Proposed Rule Ignores Providers Who Support Reproductive Health Care

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

CONTENT: “Not only does this scheme fail to ensure patient health, it also fails to safeguard the very right it claims to defend — the freedom of conscience.”

CONTACTS:
Elizabeth Boylan, 212–854–0167, eboyla@law.columbia.edu
Elizabeth Reiner Platt, 212–854–8079, ep2801@columbia.edu


New York, NY, March 27, 2018 — In medical facilities across the country, doctors whose conscience would require them to perform a sterilization on a patient who requests one, offer truthful information about accessing abortion services, or provide comprehensive LGBTQ+ health care are forbidden from doing so by their employer. The conscience of such medical providers is entirely ignored by the U.S. Department of Health and Human Service’s (HHS) recently proposed rule that purports to “ensure that persons or entities” providing health care “are not subjected to certain practices or policies that violate conscience, coerce, or discriminate.” As explained in a comment submitted today by the Columbia Law School Public Rights/Private Conscience Project (PRPCP), HHS’s proposed rule provides conscience protection only to those whose religious views match those of the administration. The rule is therefore legally suspect.

The HHS rule would enact sweeping protections for medical providers, health care facilities, insurance plans, and even employers who believe that abortion, sterilization, and other healthcare services are morally wrong. In contrast, it provides only extremely limited protections to those whose religious or moral beliefs lead them to offer their patients the full range of sexual and reproductive health care.

There are many such providers; studies and articles have described a wide range of conflicts between physicians who wish to provide reproductive health care to patients, especially emergency care, and faith-based medical facilities that prohibit this care. Furthermore, abortion providers frequently speak of their practice in religious or moral terms. To provide just a few examples, Dr. George Tiller referred to his work providing abortion care as a “ministry.” Dr. Sara Imershein has described providing abortion care as a “mitzvah” and said that “No one should be able to step in the way of what I consider to be my moral obligation.” Dr. LeRory Carhart stated in an interview, “I think what I’m doing is because of God, not in spite of God.”

“Under the proposed rule, a doctor who refuses to provide care that is medically indicated and requested by a patient is protected, while a doctor who does provide this care in accordance with her conscience can be fired,” said Elizabeth Reiner Platt, Director of PRPCP. “Not only does this scheme fail to ensure patient health, it also fails to safeguard the very right it claims to defend — the freedom of conscience.”


The Public Rights/Private Conscience Project

The Public Rights/Private Conscience Project’s 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. We undertake approaches to the developing law of religion that both respects the importance of religious liberty and recognizes the ways in which too broad an accommodation of these rights threatens Establishment Clause violations and can unsettle a proper balance with other competing fundamental rights. Our work takes the form of legal research and scholarship, public policy interventions, advocacy support, and academic and media publications.

To learn more, please visit us at http://www.law.columbia.edu/gender-sexuality/public-rights-private-conscience-project

Media Advisory – Dignity Denied: Religious Exemptions and LGBT Elders

Dignity Denied: Religious Exemptions and LGBT Elders

Media Advisory: The Public Rights/Private Conscience Project joins SAGE and the Movement Advancement Project announce the release of a groundbreaking report entitled, Dignity Denied: Religious Liberties and Elder Care, on the negative impacts Religious exemption laws and policies have on elder LGBT persons in the United States, and how these policies put elder LGBT persons at risk of discrimination.

Date:
Friday, December 15, 2017
12:00 pm – 2:00 pm

Location:
Union Theological Seminary
Columbia University in the City of New York
3041 Broadway (at West 121 Street), Room 207
New York, NY 10027

Press Contact:
Liz Boylan
Associate Director, Center for Gender & Sexuality Law, Columbia Law School
212.854.0167 | eboyla@law.columbia.edu.

[NEW YORK] The Public Rights/Private Conscience Project is thrilled to join SAGE, the nation’s largest and oldest organization dedicated to improving the lives of LGBT elders, and the Movement Advancement Project in announcing the release of a groundbreaking report on how Religious exemption laws and policies have a disproportionately negative impact on elder LGBT persons in the United States.

The report will be launched with a panel discussion and luncheon on Friday, December 15th at Columbia University’s Union Theological Seminary.  The program will detail the increased risks LGBT older adults face as a result of recent religious exemption laws and policies that enable a “right to discriminate.”

This program is free and open to the public.  Please RSVP via: utsnyc.edu/SAGE

  • Alex Sheldon, Research Analyst, The Movement Advancement Project
  • Audrey Weiner, President and CEO, The New Jewish Home
  • Carmelyn P. Malalis, Chair and Commissioner, New York City Commission on Human Rights
  • Fred Davie, Executive Vice President, Union Theological Seminary
  • Jonathan Soto, NYC Mayor’s Office: Executive Director of the Center for Faith and Community Partnerships
  • Katherine Franke, Professor of Law and Faculty Director of the Public Rights/Private Conscience Project, Columbia Law School
  • Michael Adams, CEO, SAGE
  • Rose Saxe, Senior Staff Attorney, LGBT & HIV Project, American Civil Liberties Union
  • Sandy Warshaw, SAGE Constituent

“This report, and the amicus brief SAGE filed in the Masterpiece Cake case, clearly demonstrate that personal religious beliefs should never be a license to discriminate against LGBT people or anybody else,” says Michael Adams, CEO of SAGE. “That’s why we are bringing together aging experts, religious leaders, and our elders, to expose the dangers that so-called “religious exemptions” pose for LGBT elders who need care and services. We must not allow the doors of a nursing home or a critical care provider to slam in LGBT elders’ faces just because of who they are and whom they love.”

Anti-discrimination Laws Don’t Burden Religious Freedom—They Secure It

Read our amicus brief for Masterpiece Cakeshop v. Colorado Civil Rights Commission here.

In cases around the country, business owners who are religiously opposed to marriage equality are suing for the right not to provide services like flowers, invitations, and cake to same-sex couples celebrating their wedding. Most notably, the Supreme Court will be deciding Masterpiece Cakeshop v. Colorado Civil Rights Commission this session—a case involving Jack Phillips, a Colorado bakery owner who violated that state’s antidiscrimination law by refusing to make a wedding cake for fiancées Charlie Craig and David Mullins.

These cases are framed specifically to pit LGBTQ rights against religious freedom in a way that is both oversimplified and misleading. Phillips’ brief complains that by requiring him to provide a wedding cake to same-sex couples, the state law provides “broader protection to LGBT consumers than to people of faith.” It’s true that in this circumstance, lower courts held that equality norms should take precedence over a business owner’s religious views. The larger reality, however, is that people of faith (some of whom are, of course, LGBTQ or LGBTQ-affirming) depend on rigorous and universal enforcement of antidiscrimination laws to protect and secure their religious freedom.

Religious freedom protections and antidiscrimination laws typically work together to ensure that people of all faiths are able to coexist in the public sphere. The Supreme Court’s most significant early free exercise cases drew a connection between the protection of religious liberty and principles of non-discrimination, grounding the standard of review for religious liberty claims in the standard honed in equal protection cases.  Even as the Court has adjusted the standard of review in constitutional free exercise cases, it has not abandoned the core equality principle that animated its earlier jurisprudence, retaining strict scrutiny for government action that is non-neutral with respect to particular religious beliefs, and describing it as a “nonpersecution principle.”

Allowing business owners to ignore antidiscrimination laws that conflict with their religious beliefs would threaten grave harms to people of faith, and especially to religious minorities. While federal and state civil rights laws law ban discrimination on the basis of religion, it is nevertheless pervasive. Claims of religiously-motivated discrimination—including the denial of public accommodations, employment, and housing as well as perpetration of hate crimes— have risen dramatically over the past decade. Discrimination is particularly severe for minority religious groups, and especially for Muslims. Over the past year, sixty percent of American Muslims have reported some level of religious discrimination. Over twenty percent of the Equal Employment Opportunity Commission’s (EEOC) charges of religious discrimination in 2015 related to Muslims, despite their representing only one percent of the U.S. population.

If business owners were permitted to ignore antidiscrimination laws based on their personal religious beliefs, they could deny a range of goods and services to members of religious groups that they consider objectionable. For example, they might refuse to cater an interfaith or non-Christian wedding or to sell clothing to Muslim or Jewish women that embrace modesty values, based on a religious objection to their practices. This is not a merely theoretical concern: in recent cases, individuals from a hotel owner to a police officer have voiced religious objections to serving those of other faiths. In fact, Phillips’ own brief acknowledges that he would refuse to provide any goods that “promote atheism.”

Furthermore, any ruling for Masterpiece Cakeshop could not be easily contained to the public accommodations context, but would likely lead to religiously-motivated discrimination in employment and housing. Last year, a federal District Court held in EEOC v. R.G. & G.R. Harris Funeral Homes that a funeral home owner who objected on religious grounds to allowing a transgender woman employee to dress in skirts at work should be entitled to an exemption from federal sex discrimination law. This case is on appeal; however, a ruling for Masterpiece Cakeshop would open the door to similar claims against religious minorities. For example, such a ruling could allow employers to violate employment anti-discrimination law by refusing to hire employees who wear hijabs, turbans, yarmulkes, or other religious clothing. The employer could argue that he believes allowing employees to wear such garb at his workplace amounts to an endorsement of their religious practices, and therefore conflicts with his own religious faith.

Religious liberty and equality in the public sphere are both fundamental American values. In the vast majority of cases, anti-discrimination law protects both religious freedom and equality by ensuring that those of all faiths, including unpopular faiths, are able to work and participate in the public marketplace without facing discrimination from either the government or other citizens. The risks to religious freedom of allowing exemptions from anti-discrimination law would far outweigh any benefit to those with a religious opposition to marriage equality. Such exemptions threaten to decimate the protections for religious minorities that have long offered them some measure of defense from discrimination in their daily lives. As the U.S. becomes more religiously diverse, our commitment to religious plurality has become all the more essential. It should not yield to those who wish to serve, house, or employ only those who share their religious beliefs, on marriage or otherwise.

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.

Trump’s “Religious Freedom” Guidance Likely Imminent and Harmful to LGBTQ Communities and Others

Cross-posted on Medium.

Last week, Attorney General Jeff Sessions gave a closed-press speech at a summit hosted by the Alliance Defending Freedom (ADF), a group that has notoriously fought to undermine LGBTQ and reproductive rights for years under the guise of protecting religious freedom. Among other concerning statements, Sessions promised that he would soon issue guidance for all federal agencies to implement President Trump’s recently enacted “religious freedom” executive order:

The department is finalizing this guidance, and I will soon issue it. The guidance will also help agencies follow the Religious Freedom Restoration Act. Congress enacted RFRA so that, if the federal government imposes a burden on somebody’s religious practice, it had better have a compelling reason. That is a demanding standard, and it’s the law of the land. We will follow it just as faithfully as we follow every other federal law. If we’re going to ensure that religious liberty is adequately protected and our country remains free, then we must ensure that RFRA is followed.

Given Sessions’ skewed prioritization of some, but not all, “religious liberty” rights over other fundamental equality guarantees under the Constitution, there is good reason to be concerned about the potential impact on LGBTQ and others, particularly Muslim communities, women, people of color, and those seeking access to reproductive healthcare.

As we discussed in our report Church, State and the Trump Administration, before taking office, Sessions made a career fighting against justice and equality for marginalized communities, including LGBTQ communities. While in the Senate, he voted against the Employment Non-Discrimination Act (ENDA), which would have protected workers nationwide from discrimination on the basis of sexual orientation. He called the Supreme Court’s decision in Obergefell v. Hodges, which found that the Fourteenth Amendment guarantees a right to marry for same-sex couples, “unconstitutional,” and “beyond what [he] considers to be the realm of reality.” He has also publicly opposed protecting LGBTQ people in federal hate crimes legislation and the Violence Against Women Act, voting against both bills while in the Senate. And when the reauthorization of the Runaway and Homeless Youth Act came up for a vote, he opposed that too, claiming that explicit protections for vulnerable LGBTQ youth meant it “could have discriminated against faith-based organizations.”

Furthermore, Sessions supported the First Amendment Defense Act (FADA) as an original co-sponsor. FADA would forbid the federal government from enforcing a wide range of health, benefits, and antidiscrimination laws against individuals and businesses who act on “a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.” This could lead to sweeping discrimination against LGBTQ people and anyone who has had sex outside of a different-sex marriage, including unmarried pregnant and parenting women. As we’ve noted in a previous report, these types of exemptions have a serious and disproportionate impact on women and pregnant people of color.

Although no information has been leaked about the pending guidance, Trump’s previously leaked Executive Order, which was significantly longer than the one he ultimately issued, may provide some insight into what the guidance may prioritize. As we discussed in a report focusing on the potential consequences of the leaked Executive Order, this could include a range of harmful outcomes, including broad exemptions that would allow private and nonprofit organizations that contract with the federal government to violate federal civil rights and nondiscrimination laws in providing social services, educational opportunities, healthcare, employment or other services—with impunity.

If Sessions’ actions in the Department of Justice are any indication, the guidance is likely to create broad opportunities for agencies across the federal government to roll back Obama-era civil rights protections and other important constitutional guarantees, using “religious freedom” as a cover.

 

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.