Category Archives: Religious Exemptions

Media Advisory: Experts Available for Interviews on Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission

MEDIA ADVISORY

12/5: SCOTUS Hearing – Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission
Religious Freedom or Discrimination?

Experts Available for Interviews on Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission

Columbia Law School Professor Katherine Franke and Elizabeth Platt Filed an Amicus Brief in the Case on Behalf of a Coalition of 15 Civil Rights and Faith Organizations.

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Media Contacts:

The Office of Public Affairs, Columbia Law School
212.854.2650
publicaffairs@law.columbia.edu

Elizabeth Boylan, Associate Director, Center for Gender & Sexuality Law
212.854.0167
eboyla@law.columbia.edu

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New York, December 1, 2017—Columbia Law School Professor Katherine Franke, a leading expert on law, religion and rights— drawing from feminist, queer, and critical race theory—and Elizabeth Platt, Director of The Public Rights/Private Conscience Project (PRPCP), are available to discuss Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the case in which a baker claims that free speech protects his right to refuse to make a cake for a same-sex wedding.

Oral arguments will be presented Tuesday before the Supreme Court.

In October, under the aegis of The Public Rights/Private Conscience Project, Franke and Platt filed an amicus brief in the case on behalf of a coalition of 15 civil rights and faith organizations. They argued that overly broad accommodations of religious liberty undermine not just LGBT rights but religious liberty itself.

“The Supreme Court’s most significant religious liberty cases have drawn a connection between the protection of religious liberty and principles of non-discrimination,” Franke said about the case. “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.”

The Public Rights/Private Conscience Project is a think tank housed within the Center for Gender and Sexuality Law at Columbia Law School. Its 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.

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Note: The Law School also has a broadcast studio on campus equipped with an ISDN line and TV connectivity through VideoLink. Please contact the Public Affairs Office for bookings.

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.”

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.

 

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.

What’s So Troubling About Funding a Playground? How Trinity Lutheran Undermines the First Amendment

Cross-posted to ReligionDispatches and Medium.

On Monday, the Supreme Court took a dramatically new approach to the First Amendment, though you wouldn’t have known it from reading the brief, oversimplified opinion. In Trinity Lutheran Church of Columbia, Inc. v. Comer the Court held that—at least in some circumstances—the Free Exercise Clause of the First Amendment requires governments to provide taxpayer funds to churches. This newfound requirement is something the dissent argued should, in fact, be prohibited under the First Amendment’s Establishment Clause.

I have previously written about the facts of Trinity Lutheran, as has RD, but they warrant a brief revisiting here. A Missouri state program offered grants for a limited number of nonprofit schools and daycares to purchase rubber playground surfaces made from recycled tires. Prospective grantees were evaluated and selected based on a number of factors, including poverty level of the surrounding area and their willingness to generate media exposure for Missouri. In 2012, Trinity Lutheran, a Missouri Synod congregation, applied for the grant to renovate the playground of a preschool owned and operated by the church. While it ranked highly, Trinity Lutheran was denied the grant because of a department policy that made houses of worship ineligible for funds. Upon learning the reason for their denial, Trinity Lutheran sued, arguing that the department policy violated their religious rights.

Typically, First Amendment cases involving government funding of religious organizations present Establishment Clause questions—with plaintiffs arguing that the state is prohibited from providing taxpayer money to a church. In fact, the Court has long held that it is unconstitutional for governments to directly subsidize religious activities. Trinity Lutheran, in contrast, asked whether the denial of funds to houses of worship may also be unconstitutional.

Shockingly, the court answered in the affirmative, finding that the Missouri policy violated Trinity Lutheran’s free exercise rights by forcing the church to choose between its religious identity and participation in a government benefit program. In an opinion by Chief Justice Roberts, the Court held “the Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character… such a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny.” The Court further held that Missouri’s stated reason for the policy—to avoid potential Establishment Clause violations—was insufficient.

The Court’s opinion stands in stark opposition to earlier religious funding decisions, and especially its 2004 opinion in Locke v. Davey. In Locke, the Court upheld a state scholarship program that prohibited recipients from using the funds to pursue a degree in devotional theology. The Court attempted to distinguish Trinity Lutheran from Locke by relying on a distinction between religious identity and religious activities. It explained, “Davey was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do—use the funds to prepare for the ministry. Here there is no question that Trinity Lutheran was denied a grant simply because of what it is—a church.”

How government agencies administering grant programs are expected to distinguish between a house of worship’s religious identity and its religious activities is a spectacularly difficult (if not impossible) task that’s entirely ignored by the Court. Making such a distinction is now constitutionally essential, however, as programs must navigate between not funding religious activities, lest they violate the Establishment Clause, and not “discriminating” against religious institutions, lest they violate the Free Exercise Clause. Previously, state programs could safely avoid such perilous questions by simply declining to fund houses of worship. Trinity Lutheran throws such policies into question—although the scope of the ruling is unclear. (More on that later.)

Both Justice Gorsuch in concurrence and Justice Sotomayor in dissent criticized the majority’s attempt to create a line between religious identity and activities, though they ultimately arrive at opposing conclusions. Gorsuch asked, “Can it really matter whether the restriction in Locke was phrased in terms of use instead of status (for was it a student who wanted a vocational degree in religion? Or was it a religious student who wanted the necessary education for his chosen vocation?).”

Similarly, in her Trinity Lutheran dissent, Sotomayor wrote, “the Church has a religious mission, one that it pursues through the [preschool]. The playground surface cannot be confined to secular use any more than lumber used to frame the Church’s walls, glass stained and used to form its windows, or nails used to build its altar.” But while Gorsuch’s opinion suggests that he would support even direct state subsidization of religious activities, Sotomayor argued that directly subsidizing a house of worship—even for ostensibly non-religious expenses such as playground surfaces—is proscribed by the Establishment Clause.

It’s notable that the Court has previously declined to require religious organizations to distinguish between their religious and secular activities. A 1987 decision, Corporation of the Presiding Bishop v. Amos, involved an Establishment Clause challenge to a religious exemption that permitted religious organizations to hire employees based on their faith, even for secular jobs such as janitorial work. The plaintiff in that case argued that while the exemption was justified for employees with religious duties, it was unconstitutional when applied to employees with purely secular jobs.

The Court disagreed, finding that creating such a constitutional line would be untenable. It held, “It is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious. The line is hardly a bright one.” Thus, the Amos Court declined to adopt a constitutional bright line between religious and secular activities in order to grant religious organizations advantageous exemptions. However in Trinity Lutheran, it relies on precisely such a distinction in order to permit (indeed, require) state funding of houses of worship.

As a more general matter, it is suspect that the majority opinion decries treating houses of worship as different from secular organizations, when the Court has repeatedly relied on this difference to grant exemptions to faith-based organizations that are unavailable to secular nonprofits. As Justice Sotomayor explains, “the government may draw lines on the basis of religious status to grant a benefit to religious persons or entities but it may not draw lines on that basis when doing so would further the interests the Religion Clauses protect in other ways. Nothing supports this lopsided outcome.”

The only saving grace (so to speak) of the opinion is buried in a footnote, though how lower courts will interpret both its weight and substance is unclear. The footnote states, “this case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” Two of the six justices who signed the majority opinion—Gorsuch and Thomas—dissented from the footnote, though Justice Breyer, who concurred only in the judgment, appears to support it.

More importantly, it’s far from clear how literally to interpret the footnote’s apparent attempt to confine the decision exclusively to programs involving playground resurfacing. Justice Gorsuch explained in his concurrence that lower courts might (in his view, mistakenly,) “read it to suggest that only ‘playground resurfacing’ cases, or only those with some association with children’s safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in . . . the Court’s opinion.” While this narrow reading of the case would limit the damage it inflicts on the Establishment Clause, it seems likely that at least some courts will interpret the decision far more broadly, and sanction a variety of programs providing direct funding to houses of worship.

Regardless of how the footnote is interpreted, the Court’s opinion in Trinity Lutheran demonstrates a fundamental misunderstanding of the purpose of the religion clauses, and effectively ignores the danger of using public coffers to subsidize houses of worship.  The majority describes this as a case about religious discrimination, which demonstrates how successful the religious right has been at rebranding nearly any attempt to enforce the Establishment Clause as a form of religious persecution. Declining to divert public money to churches has long been considered necessary to protect the individual right of conscience of the citizenry. Far from being discriminatory, separation of church and state is intended to ensure that individuals may choose to adhere to any or no religious beliefs free from coercion, and that the church itself is protected from government intrusion. The majority opinion ignores the long history of and important justifications for prohibiting state subsidization of houses of worship. Hopefully, its damage will be confined to the unusually sympathetic facts of this case.