Category Archives: Racial Justice

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.

From Birth Control to Death: Facing Black Women’s Maternal Mortality

Event Announcement
Friday, March 30, 2018
From Birth Control to Death: Facing Black Women’s Maternal Mortality
Barbara Jordan Conference Center | Henry J. Kaiser Foundation
1330 G Street, NW | Washington, DC 20005
1:00 pm – 2:30 pm

Eventbrite: www.bit.ly/birthcontroltodeath

America has the highest maternal mortality rate of any developed nation, according to the World Health Organization which found that between 700 – 1200 women died in the United States each year from pregnancy or childbirth complications. The United States’ maternal mortality rate has more than doubled since 1990, climbing from 12 to 28 deaths per 100,000 births.

We know that not all women are equally impacted by this phenomenon. According to NPR and ProPublica, Black women are 243% more likely to die in childbirth than white women. However, what many do not realize is that Black women’s vulnerability to maternal mortality is not a class determined issue. Factors that contribute to pregnancy and childbirth complications include damaging stereotypes about Black women’s strength and resiliency, and the pervasive notion that their pain is less real than that of their white women counterparts – factors that impact all Black women regardless of their socioeconomic success, academic achievement, and overall health and wellness.

As much as Black women have been valorized for their strength, we must recognize the elements of this myth that constitute relics of slavery. The indestructibility of Black women has long been an excuse for overwork and under-protection, a rationalization for our exploitation and abuse that has morphed into a dangerous stereotype that we have all too often internalized. These assumptions gravely imperil and undermine Black women’s health, both mental and physical, and lead to higher rates of heart disease, strokes, and maternal mortality.

Additionally, pregnant women of color are at greater risk of being deprived of a range of reproductive health services in many US states as a result of their disproportionate use of Catholic hospitals, according to a new report released on January 19th by the Columbia Law School Public Rights/Private Conscience Project (PRPCP) in partnership with Public Health Solutions. Bearing Faith: The Limits of Catholic Health Care for Women of Color compares racial disparities in birth rates at hospitals that place religious restrictions on health care.  Catholic-affiliated hospitals are governed by the “Ethical and Religious Directives for Catholic Health Care Services,” a set of strict guidelines that prohibit doctors from providing contraceptives, sterilization, some treatments for ectopic pregnancy, abortion, and fertility services regardless of their patients’ wishes, the urgency of a patient’s medical condition, the doctor’s own medical judgment, or the standard of care in the medical profession.

The report finds that in many states, women of color are far more likely than white women to give birth at Catholic hospitals, putting them at greater risk of having their health needs determined by the religious beliefs of bishops rather than the medical judgment of doctors; This finding is especially troubling given that women of color already face a range of health disparities—including lower rates of insurance coverage and higher rates of pregnancy complications—which increases their need for comprehensive reproductive health care.

To hear radical discourse on the implications of these issues, and the steps we must take moving forward to address these systemic injustices, join the African American Policy Forum at The Barbara Jordan Conference Center in Washington DC on March 30, 2018 from 1:00-2:30pm for the closing panel of their week-long program, #HerDreamDeferred 2018: From Birth Control to Death: Facing Black Women’s Maternal Mortality.

The panel will feature remarks from Kira Shepherd, Director of the Racial Justice Program with Columbia Law School’s Public Rights/Private Conscience Project, among others, and will explore the ways in which stereotypes around the invincibility of Black women, their environmental circumstances and the gaps in culturally competent health care all intersect and interact to endanger Black women in specific and extreme ways.

Further details about this event may be found at Eventbrite; for questions about this program, contact Henone Girma at henone.girma@aapf.org, or Liz Boylan at eboyla@law.columbia.edu.

Columbia Law School Think Tank Files Amicus Brief in SCOTUS Case

In Masterpiece Cakeshop Case, Diverse Organizations Argue Anti-discrimination Laws Protect, Not Burden, Religious Liberty

For Immediate Release: October 31, 2017

Subject: Columbia Law School Think Tank Files Amicus Brief in SCOTUS Case, Masterpiece Cakeshop v. Colorado Civil Rights Commission

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

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

Yesterday, Columbia Law School’s Public Rights/Private Conscience Project and Muslim Advocates filed an amicus brief in the U.S. Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission on behalf of a coalition of 15 diverse civil rights and faith organizations. At issue in Masterpiece Cakeshop is whether the owners of a Colorado public establishment may, due to their own private religious beliefs, refuse service to individuals because of their sexual orientation.

The amicus brief argues that overly-broad accommodations of religious liberty, such as that requested by Masterpiece Cakeshop, undermine not just LGBT rights but religious liberty itself.  As the brief explains: “There can be no dispute that anti-discrimination laws have long played a crucial role in protecting the rights of religious minorities. Petitioners’ requested exemption will dramatically limit—if not completely eliminate—that protection.”

Today’s filing also highlights that interconnectedness of religious freedom and robust anti-discrimination laws.  In fact, the brief makes clear that our country’s “constitutional commitment to religious liberty has always entailed a corollary commitment to non-discrimination. Indeed, the integrity of the former has always relied upon the enforcement of the latter. ”

The coalition of civil rights and faith organizations that submitted this amicus brief to the Supreme Court represent the vast diversity within American faith communities.  The signatories include:  Muslim Public Affairs Council, American Humanist Association, DignityUSA, Sikh Coalition, T’ruah: The Rabbinic Call for Human Rights, Capital Area Muslim Bar Association, Advocates for Youth, Muslim Alliance for Sexual and Gender Diversity, National LGBT Bar Association, Interfaith Alliance Foundation, Asian Americans Advancing Justice | AAJC, Sikh American Legal Defense and Education Fund, and New Jersey Muslim Lawyers Association (NJMLA).

“The Supreme Court’s most significant religious liberty cases have drawn a connection between the protection of religious liberty and principles of non-discrimination,” said Katherine Franke, Professor of Law and Faculty Director of the Public Rights/Private Conscience Project at Columbia Law School.  “Masterpiece Cakeshop’s argument throws a wedge between these two fundamental American values, a position that poses a particularly dangerous threat to the rights of people of minority faith traditions.”

“Religious liberty and non-discrimination are inextricably tied to one another and should not be traded off against each other,” said Johnathan Smith, legal director at Muslim Advocates.  “When robust civil rights protections are undermined, religious groups have no recourse to defend themselves against discrimination.  A ruling in favor of Masterpiece Cakeshop would undercut fundamental civil rights protections that are critical for maintaining this country’s longstanding commitments to religious freedom and religious pluralism.”

The amicus brief was authored by Columbia Law School’s Public Rights/Private Conscience Project, Muslim Advocates, and the law firm Hogan Lovells.  The U.S. Supreme Court is scheduled to hear oral arguments in Masterpiece Cakeshop on Tuesday, December 5.

A copy of the brief is available here.

Muslim Advocates is a national legal advocacy and educational organization that works on the frontlines of civil rights to guarantee freedom and justice for Americans of all faiths.

The Public Rights/Private Conscience Project is a think tank housed within the Center for Gender and Sexuality Law at Columbia Law School. Our mission is to bring legal, policy, advocacy, and academic expertise to bear on the multiple contexts in which religious liberty rights conflict with or undermine other fundamental rights to equality and liberty.

 

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

______________________________________________

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

Because You’re Not Fooling Anyone: Why Trump Travel Ban 2.0 Still Unconstitutional

Cross-posted with Religion Dispatches, and on Medium, March 14, 2017

Trump’s second attempt at banning travel from certain Muslim-majority countries is clearly written to avoid being struck down under the Establishment Clause. Most notably, it no longer contains provisions that preference entry for religious minorities—language the President himself admitted was intended to prioritize entry for Christian rather than Muslim refugees.

So why isn’t the new EO constitutional, at least with regard to First Amendment claims? Because cutting its most obviously discriminatory provision doesn’t fix the fact that the new EO was passed with the same invalid purpose as the President’s first attempt—to reduce Muslim immigration into the U.S. When a candidate campaigns for nearly two years on the promise of banning, profiling, and even registering Muslims, that is context that a court can—and should—consider in evaluating whether his actions are motivated by religious animus or legitimate security concerns.

In 2005, the Supreme Court issued two decisions on the question of whether displaying the Ten Commandments in or near a courthouse violated the Establishment Clause of the First Amendment. The cases came out split, with one display upheld and the other held unconstitutional. The takeaway? Context and history matter.

These decisions serve as helpful background for why a quick fix to Trump’s Executive Order on Immigration doesn’t resolve all the EO’s constitutional problems.

In one of the cases, McCreary County v. ACLU, the displays at issue were the third in a series of exhibits that had been repeatedly challenged as unconstitutional. The first displays—installed in two Kentucky county courthouses—were large, gold-framed copies of the Ten Commandments, with a citation to the Book of Exodus. In response to a suit by the ACLU, the counties expanded the displays to include additional documents in smaller frames, each with a religious theme, including the “endowed by their Creator” passage from the Declaration of Independence and the national motto, “In God We Trust.”

When a District Court preliminarily enjoined both the original and the expanded displays, the counties installed a third version, this time consisting of nine framed documents including the Ten Commandments, Magna Carta, Declaration of Independence, and Bill of Rights. In explaining its decision to strike down even this seemingly acceptable display, the Supreme Court noted: “the purpose apparent from government action can have an impact more significant than the result expressly decreed” (emphasis added).

In other words, the counties weren’t fooling anyone.

In order to be upheld under the Establishment Clause, a government action must have a valid secular purpose. While courts typically give deference to the secular intent proffered by legislatures, the purpose has to be “genuine, not a sham.” In this case, it was obvious to the Court that the counties’ intent in creating the third round of displays was no different than their intent for the original display: they “were simply reaching for any way to keep a religious document on the walls of courthouses constitutionally required to embody religious neutrality.”

In contrast, the Court in Van Orden v. Perry held that it was permissible for Texas to accept and display a Ten Commandments statue donated by a civic organization on the state capitol grounds, alongside 17 other monuments and 22 historical markers. In this case, there was no history indicating a legislative intent to endorse or advance religion.

The history of Trump’s two Executive Orders recalls the counties’ efforts in McCreary to water down a religious display simply to meet legal approval, without changing its underlying intent. In the years leading up to the EO, President Trump repeatedly pledged to ban Muslims from entering the country. (He also made comments supporting Muslim profiling, the creation of a Muslim registry, and the closure of mosques.) Trump sometimes varied his language, calling his plan “extreme vetting” or emphasizing its application to “terror nations” rather than Muslim-majority nations.

After the issuance of the first order, however, Trump advisor Rudy Giuliani openly admitted that the President intended to craft a Muslim ban that would withstand judicial scrutiny. When the ban was enjoined, Trump stated in a press conference that the administration could “tailor the [new] order to that decision and get just about everything, in some ways more.” White House advisor, Stephen Miller, also stated that the new EO contained “mostly minor, technical differences,” and would “have the same, basic policy outcome for the country.”

Thus, despite the elimination of the explicit religious preference, there’s no indication that the new order should be treated any differently from the last one when it comes to determining whether the administration had a valid, secular, non-discriminatory purpose in issuing the EO.

This is certainly not to say that Trump can never pass a law on immigration or national security that won’t violate the Establishment Clause. The McCreary Court explained that it did not hold that the counties’ “past actions forever taint any effort on their part to deal with the subject matter.” However it does mean that Trump cannot avoid the ample and longstanding evidence that his EO is intended to be a Muslim ban simply by removing the language that most clearly identifies it as one.

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

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

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

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

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

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

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

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

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

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

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

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

PRESS RELEASE

FROM: PUBLIC RIGHTS/PRIVATE CONSCIENCE PROJECT

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

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

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

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

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

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

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

Read the full report here.

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

PRPCP is on Facebook and Twitter.  Follow us to keep up to date with the latest information regarding our research, programs, and events.

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

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

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

LGBTQ Communities

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

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

Muslim Communities

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

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

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

Significant Gains May be Lost

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

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

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

Religious Discrimination Removed from National Defense Bill

In a briefing with reporters on Tuesday, a Congressional aide confirmed that the final version of the National Defense Authorization Act (NDAA) will not contain what has come to be known as the “Russell Amendment.” The Amendment would have required the Federal Government and all of its agencies to allow federally-contracted religious organizations and associations to discriminate against current and potential employees when those employees do not share their employers’ religious beliefs or adhere to the tenets of their employers’ religion. These exemptions already exist in private employment contexts, but the Amendment would have codified the requirement for all federally-contracted programs, which collectively employ approximately 28 million people, or more than 20 percent of the American workforce.

Although this is a positive development for those concerned with the potential consequences of the Amendment, the aide indicated that its removal is directly related to “new paths” that have opened up to address the Amendment’s intended purpose, indicating a related stand-alone bill may be introduced in the near future.  Steve Russell, a member of the U.S. House of Representatives from Oklahoma, attached the contentious amendment to the NDAA in May, and it passed narrowly in a late night House vote. Today, that Amendment seems to have been stripped from the bill’s current version, which will likely come up for a floor vote on Friday.

Opponents of the Amendment claim that, had it passed, it would have been a direct and intentional threat to a 2014 Executive Order signed by President Obama (EO 13672), which prohibits federal contractors and sub-contractors from engaging in employment discrimination on the basis of a worker’s sexual orientation or gender identity.  EO 13672 amended an earlier Executive Order signed by President Lyndon Johnson in 1965—which has been enforced by subsequent Administrations—prohibiting federal contractors from discriminating against their employees on the basis of religion, sex, race, and national origin.

Proponents of the Amendment argued that the measure would simply reinforce the current legal status quo, by incorporating exemptions for religious organizations found within Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA), both of which do provide limited nondiscrimination exemptions to religious organizations—but neither of which clearly apply in the context of federal contractors.

As opponents of the Amendment rightly point out, had it passed, the law would have undermined existing federal nondiscrimination protections not only for lesbian, gay, bisexual, transgender and queer (LGBTQ) workers and communities, but also for communities of color, people living with disabilities, immigrant communities, women and gender non-conforming people, people of faith or no faith who hold different views than their employers, and others who would otherwise be protected under Title VII, the ADA, or other nondiscrimination regulations that federal agencies have already promulgated.

For example, under this Amendment, an organization, using federal funds, might refuse to hire a transgender person simply by claiming that their identity and non-conformity to certain sex stereotypes did not meet a tenet of that employer’s religion—namely, that if a person is assigned a particular sex at birth, they must have a particular gender identity or set of gender expressions. While the Supreme Court has ruled clearly that employment discrimination on the basis of sex stereotyping is a violation of Title VII—and the Equal Employment Opportunities Commission and federal courts have confirmed this applies to transgender and gender non-conforming people—the Amendment would have created a broad exemption for all federal contractors that fall under the exemption, without guidance on how existing nondiscrimination protections might be threatened or undermined.

Furthermore, proponents failed to address the unique constitutional concerns that arise under the Establishment Clause when government funds, as opposed to private funds, are used to promote and endorse religion and further discriminatory behavior against third parties. In this case, job applicants or current employees of religious organizations could have been directly harmed.

Although the removal of the Russell Amendment is welcome news to those concerned with its consequences, given the recent election outcome and the current list of proposed Presidential appointments, similar legislative and administrative efforts seem inevitable in the immediate future and over the next several years.