Category Archives: Mass Incarceration

Joint Statement By CAIR and PRPCP on President Trump’s EO on “Religious Liberty”

Joint Statement
By the Council on American-Islamic Relations of New York &
Columbia Law School’s Public Rights/Private Conscience Project

May 15, 2017

As advocates for free exercise of religion, civil rights, and religious pluralism, we are deeply concerned that President Trump’s recently signed Executive Order “Promoting Free Speech and Religious Liberty” will serve to limit, not protect, religious freedom. The order was signed on May 4, 2017, in a ceremony that included Christian musician Steven Curtis Chapman and statements by Pentecostal televangelist Paula White, Baptist Pastor Jack Graham, Catholic Archbishop Donald Wuerl, Rabbi Marvin Heir, and Vice President Mike Pence. While the executive order—unlike a prior leaked draft—does not single out particular religious beliefs for special protection, we are nevertheless concerned that the broad discretion it offers to federal agencies will have the effect of favoring majoritarian faiths at the expense of religious minorities.

Religious Liberty Guidance Provision

Section 4 of the order directs the Attorney General to “issue guidance interpreting religious liberty protections in Federal law.” This provision suggests that the administration plans to take an aggressive approach in affirmatively interpreting federal religious accommodation laws, like the Religious Freedom Restoration Act (RFRA), to grant exemptions from federal law to religious objectors. Religious exemptions are often essential to protecting religious minorities when neutral laws and policies unintentionally burden their beliefs and practices. For example, religious exemptions have ensured that Sikhs, Muslims, and Jews in the military and other workplaces are able to wear religious headwear despite uniform rules. However, President Trump’s order signals an intent to construe religious exemptions more broadly than in the past; such wide discretion is likely to disproportionately protect majoritarian beliefs, perhaps at the expense of religious minorities and other marginalized communities. The Executive Order’s signing ceremony was representative of a larger and pervasive bias in the way that this administration has interpreted “religious liberty”: neglecting, if not, affirmatively denying, the rights of religious minorities – especially Muslims.

So too, this administration is committed to expanding too broadly the notion of religious liberty for some people of faith over others. In particular, inappropriately-broad exemptions run the risk of allowing religious objectors to become religious enforcers, and to impose their views on third parties. Faith-based exemptions from health, employment, and civil rights laws would protect religious health care providers, employers, and landlords, at the expense of workers, patients, and tenants who do not share their beliefs. It is important to note that overly-broad interpretations of religious exemptions threaten religious liberty itself, even among Christians, since even members of the same faith often hold divergent views on many moral and philosophical issues. For example, many Christians as a matter of their faith support reproductive rights for women, equality for LGBTQ people, and religious pluralism in the workplace, public accommodations and elsewhere. Nevertheless, religious minorities are at particular risk of being coerced into abiding by or supporting dominant religious beliefs. This is especially true for minority religions that already face significant mistrust and discrimination, including Muslims, Sikhs, and nonbelievers. Other communities—including LGBTQ people, unmarried families, and those seeking reproductive health care— may also be harmed if the DOJ takes an overly-expansive approach to federal religious exemption law that allows religious objectors to impose their beliefs on others.

We are especially troubled by the fact that the order directs sensitive religious exemption decisions to be made by Attorney General Jeff Sessions, who has a long history of supporting Islamophobic measures, organizations, and beliefs. This history includes:

  • In December 2015, then-Senator Sessions voted against a nonbinding amendment seeking to prevent a religious litmus test for people entering into the United States. During that vote, Senator Sessions said: “Many people are radicalized after they enter. How do we screen for that possibility, if we cannot even ask about an applicant’s views on religion?” Following the horrific shooting that targeted LGBTQ Latinx people at a nightclub in Orlando, Sessions warned Americans on FOX News Sunday to “slow down” on foreign born admissions into the United States, particularly those with Islamic backgrounds. “It’s a real part of the threat that we face and if we can’t address it openly and directly and say directly that there is an extremist element within Islam that’s dangerous to the world and has to be confronted.” In an interview in June 2016, Sessions said of U.S. immigration policy, “We need to use common sense with the who-what-where of the threat.  It is the toxic ideology of Islam.”
  • In October 2013, Senator Sessions asRanking Member of the Senate Budget Committee sent a letter to the National Endowment for the Humanities (NEH) in part demanding a justification for why the NEH was “promoting” Islamic cultures at the expense of Christian and Jewish cultures. The purpose of NEH’s Muslim Journeys program is to “offering resources for exploring new and diverse perspectives on the people, places, histories, beliefs, and cultures of Muslims in the United States and around the world.”
  • Sessions has also associated himself with anti-Muslim hate groups. In 2015, Sessions accepted the “Keeper of the Flame” award from the Center for Security Policy, whose leader Frank Gaffney has advanced the conspiracy theory that President Obama is Muslim and whose reporting the FBI has said “overstated” any threat Muslim observances pose to America. In 2014, Sessions accepted the “Annie Taylor Award” from the David Horowitz Freedom Center and he attended the group’s annual “Restoration Weekend” retreats in 2008, 2010 and 2013. The Southern Poverty Law Center, a group that tracks hate movements in the United States, labels David Horowitz “the godfather of the modern anti-Muslim movement.”

While Sessions has expressed hostility towards Muslims, he has long supported writing conservative Christian beliefs about sex, marriage, and reproduction into law. In one interview, he expressed doubt about admitting into the country Muslims who hold conservative views about sex and sexuality, suggesting that immigrants should be asked if they “respect minorities such as women and gays.” Despite this, he has been an ardent opponent of LGBTQ equality and reproductive rights, and was a sponsor of the First Amendment Defense Act (FADA), a religious exemption law that would create special protections for those who believe that sex should only take place within a cisgender, different-sex marriage. Thus, we hold deep reservations that Attorney General Sessions will be willing and able to interpret religious exemption laws equally for all religions and beliefs, and will adequately consider the burdens that religious exemptions place on third parties.

Johnson Amendment Provision

The potential ramifications of the recently signed EO are especially worrying, given that President Trump joins a long line of Republican figures who support repeal of the Johnson Amendment, a federal law that prohibits tax-deductible non-profits (including universities, charities, and houses of worship) from participating or intervening in “any political campaign on behalf of (or in opposition to) any candidate for public office.” Recent examples include the U.S. House’s Free Speech Fairness Act (which is supported by 57 Republican Representatives) and its companion bill in the U.S. Senate (which is supported by 5 Republican Senators).

For years, conservative political activists have fought against this provision, arguing that it amounts to an unconstitutional limitation of the First Amendment rights of religious leaders and houses of worship to comment on political activities. In contrast, political observers note that the repeal of the amendment, combined with the tax deductibility of 501(c)(3) donations, would effectively lead to taxpayers subsidizing political activism from houses of worship and other non-profits.

The operative provision of the executive order, Section 2, is quite limited: the Treasury Secretary is not to challenge the tax exempt status of religious organizations that speak “about moral or political issues from a religious perspective, where speech of similar character has . . . not ordinarily been treated as participation or intervention in a political campaign . . . .” Since the IRS has never shown any interest in expanding tax-exempt enforcement against houses of worship, the order is, at most, a ratification of the status quo. For years, activists have flagrantly violated the Johnson Amendment, only to see the IRS refuse to respond or agree to generous settlements. Since 2008, conservative activists such as the Alliance Defending Freedom (ADF) have hosted Pulpit Freedom Sunday a few weeks before Election Day, encouraging pastors across the country to talk electoral politics in church as part of a deliberate effort to draw scrutiny from the IRS so that ADF can launch a constitutional challenge to the law. ADF encourages Christian Pastors to engage in civil disobedience and “speak truth into every area of life from the pulpit.” To date, none of the participating pastors have faced IRS enforcement measures.

If Congress repealed the Johnson Amendment, or if President Trump implemented a more robust executive order on the topic, the effect would be strikingly asymmetrical. Christian and Jewish clergy (and other politically-secure religious traditions) would be empowered to bring faith and politics together at the very moment that Muslim clergy worry about the growing net of suspicion and surveillance being cast on their community. Unlike their counterparts in other faiths, Muslim clergy are primarily fearful of the local, state, and federal intelligence operations that target their houses of worship, and not without cause. Muslims already face increased scrutiny from law enforcement officials. For example, the National Security Agency and the FBI allegedly tracked email accounts of five Muslim American leaders between 2006 and 2008, according to an NSA spreadsheet of email addresses disclosed by former NSA contractor Edward Snowden. More recently, over 100 people contacted the Council on American Islamic Relations to report that they were visited by the FBI prior to the 2016 election.

The effect would be particularly pronounced here in New York, where Muslims face additional scrutiny from the NYPD, which has a long history of suspicionless, warrantless surveillance of the Muslim community. According to the NYPD’s own inspector general, 95% of recent NYPD intelligence investigations targeted Muslim New Yorkers or organizations associated with Islam, and the NYPD has repeatedly inserted undercover agents everywhere from New York masajid to Muslim student groups at public colleges.

While President Trump’s May 4th executive order, self-styled as “Protecting Free Speech and Religious Liberty,” was largely symbolic, it has disturbing implications for how measures that purportedly advance religious liberty can promote majoritarian religious institutions, while harming the minority faiths most in need of protection. Hopefully, the order isn’t a harbinger of more meaningful and substantive measures in the months and years to come.

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Access a .pdf of this statement from the Council on American Islamic Relations and the PRPCP here.

For questions regarding this analysis, or to contact the Public Rights/Private Conscience Project regarding this or any other issues, contact:

The Public Rights/Private Conscience Project
Liz Boylan, Assistant Director for the Center for Gender & Sexuality Law
E-mail: eboyla@law.columbia.edu
Phone: 212.854.0167

To read other analyses by the Public Rights/Private Conscience Project, visit us on the web at: https://www.law.columbia.edu/gender-sexuality/public-rights-private-conscience-project.

 

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.