Category Archives: Reproductive Rights

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

FOR IMMEDIATE RELEASE: April 3, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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


The Public Rights/Private Conscience Project

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

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

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 Experts Denounce Federal Guidance Allowing Religious and Moral Discrimination in Contraceptive Coverage

Press Statement: October 6, 2017

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

Columbia Law School’s Public Rights/Private Conscience Project (PRPCP) condemns the Trump administration for issuing sweeping new rules today that roll back the Affordable Care Act (ACA)’s birth control benefit, by broadening exemptions for employers who claim religious or moral objections to offering birth control to their workers. These regulations place the religious and moral views of employers above the health and wellbeing of their workers and gut the contraceptive coverage provision of the ACA by dramatically reducing access to affordable birth control. Rather than protecting religious freedom for all Americans, these regulations are part of the current administration’s ongoing effort to advance a limited set of conservative religious beliefs while limiting the liberty and equality rights of women, LGBTQ people, people of color, and religious minorities.

For over seven years, the religious right has waged a battle to limit the scope of preventive health care services covered by the ACA, including essential reproductive health care. In 2014, they won a significant victory when the Supreme Court ruled in Burwell v. Hobby Lobby that secular for-profit companies could assert religion-based waivers from the duty to include health care coverage for contraceptives in their employee health plans. The Court’s opinion hinged, however, on the fact that women would still have access to such care, which would be covered by their insurance plan rather that their employer. After another three years of litigation and intense lobbying, anti-choice advocates have at long last succeeded in making it possible for employers to entirely cut off their employee’s access to contraceptive coverage, not only because of their religious objections, but now because of their moral objections as well.

In depriving workers and their families of essential health care coverage, the regulation violates both the First Amendment’s Establishment Clause and the Fourteenth Amendment’s Equal Protection Clause. By requiring workers to bear the cost of their employer’s religious beliefs, the regulation conflicts with a clear line of Supreme Court cases which hold that where a government-created religious accommodation imposes serious harms on others, it ceases to be a valid protection of personal faith and instead becomes an unconstitutional establishment of religion.

“With these new rules, the federal government is giving the green light to employers to discriminate against their women workers, and those seeking access to reproductive care, in the name of religious liberty or individual moral belief,” said Katherine Franke, Sulzbacher Professor of Law at Columbia Law School and Faculty Director of the Public Rights/Private Conscience Project. “The fundamental health care needs of working women are now held hostage by right wing interest groups,” Franke concluded.

As PRPCP’s Racial Justice Program (RJP) has noted in the past, these types of rules have an especially devastating impact on women of color. Women of color have higher unintended pregnancy rates than their white counterparts and face increasing difficulties in accessing care. Eliminating these disparities requires increasing access to contraception and family planning resources, which allow women of color to plan whether and when they have a child, which research has shown provides them with greater financial stability and freedom. “Research shows that teen pregnancy rates have dropped to an all-time low in recent years due to increased access to affordable, quality contraception and education about family planning,” said Kira Shepherd, Director of PRPCP’s Racial Justice Program. “Native Americans, Black communities and Latinas, who have the highest teen pregnancy rates of all communities, stand to be harmed the most by these new rules, which limit young women’s and people’s ability to make informed choices about their reproductive health and lives. Here, the Trump administration has once again shown that it cares little about the health and wellbeing of communities of color.”

“President Trump’s repeated efforts to ban immigration from majority-Muslim countries—which a circuit court said drips ‘with religious intolerance, animus, and discrimination’—demonstrate that the administration is not concerned with protecting religious freedom for everyone,” said Elizabeth Reiner Platt, Director of PRPCP. “These rules are just another demonstration of the ongoing effort to push conservative religious beliefs about sex, marriage, and reproduction onto others who do not share those beliefs.”

Access a .pdf of this statement here: http://tinyurl.com/PRPCP-Release-ACA-10-6

Learn more about PRPCP’s staff here: http://tinyurl.com/PRPCP-Staff

For more information on the PRPCP, visit our website: http://tinyurl.com/PRPCP-Columbia

 

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.

_______________________________________________

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.

 

Potential Consequences of Trump’s “Religious Freedom” Executive Order

Press Advisory: Potential Consequences of Trump’s “Religious Freedom” Executive Order

Date: May 4, 2017

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

Contact: Ashe McGovern | amcgovern@law.columbia.edu | 212.854.0167

Potential Consequences of Trump’s “Religious Freedom” Executive Order

President Trump is set to sign a far-reaching and constitutionally problematic executive order today. Although a draft of the final order has not yet been released, it will likely mirror, at least in part, a similar draft that was leaked earlier this year. While more detailed analysis will be necessary once the final order has been released, the leaked order raises the following issues. Specifically, the order:

Defines “people” to include for-profit corporations—even corporations that do not have an exclusively religious purpose. The order defines a “person” to be consistent with 1 U.S.C 1, which includes for-profit corporations.  This means that where the order affirms the right of “people” to act in accordance with a particular set of religious beliefs, including opposition to LGBTQ equality, it enables for-profit corporations to act in a discriminatory manner. These companies would be shielded from government intervention and enforcement of otherwise applicable laws, as long as they assert that their behavior is in keeping with a particular set of “religious beliefs.” The order also defines “religious organization” to include closely held for-profit corporations “operated for a religious purpose even if its purpose is not exclusively religious and is not controlled by or associated with a house of worship.” Thus an organization that is primarily engaged in secular activities, but claims to have some set of guiding religious principles—which the order fails to limit or define—could qualify as a religious organization. It would then be granted the protections religious organizations are given under this order.

Grants broad exemptions from federal civil rights and nondiscrimination laws to private and nonprofit organizations that are funded by the federal government to provide social services, education, healthcare, employment opportunities or other services to the general public. The order states that “persons and organizations do not forfeit their religious freedom” when contracting with the federal government in delivering services to the general public. This means that private organizations, even those that are funded by the federal government, will be shielded from claims that they have violated civil rights and nondiscrimination law as long as they claim their behavior is in accordance with a set of religious beliefs that they are free to define. This also means that the federal government will be unable to require religious grantees to provide publicly-funded services on a nondiscriminatory basis.

Enables federal contractors to impose their religious beliefs on their workers as a condition of employment. The order states that all agencies must provide exemptions to federal contractors and grantees consistent with religious exemptions found within the Civil Rights Act and Americans with Disabilities Act. These exemptions have been carefully tailored and limited by the courts, and do not currently apply to federal contractors. Applying them to federal contractors would impermissibly expand the exemptions, and allow federally-funded organizations to require that their employees follow particular religious beliefs or behaviors in order to remain employed.

Grants broad religious exemptions to federal employees acting in their official capacities as government workers, including workers that regularly interact with the public. The order requires agencies to “accommodate” the religious beliefs of federal employees, even where those beliefs conflict with their official duties as government employees. This could mean that a federal employee, who works for the Social Security Administration, for example, could refuse to process an application for a same-sex couple, a transgender person or a person of different faith, by stating that their religious beliefs prohibit them from doing so.

Directs relevant federal agencies to exempt any organization, whether religious or secular, from having to provide comprehensive reproductive services and healthcare to their workers. The order directs the Departments of Health and Human Services, Labor, and Treasury to issue an immediate interim rule that “exempts from the preventative care mandate…all persons and religious organizations that object to complying with the mandate for religious or moral reasons.” The order also directs HHS to take “appropriate actions” to ensure that “any individuals” who purchase health insurance on the individual markets, including federally facilitated and state sponsored health insurance, have the ability to purchase insurance that does not provide coverage for abortion and “does not subsidize plans that do provide such coverage.” This means that any for-profit employer can be granted a religious exemption from the requirement that they or their health plans provide contraceptive and family planning services. This would substantially broaden the Supreme Court’s holding in Burwell v. Hobby Lobby, which applied only to closely-held corporations. The order would also require state and federal exchanges to include plans that prohibit family planning services. Furthermore, it would preempt state laws that require health plans to cover birth control and abortion.

Allows federally-funded child welfare services and agencies to discriminate on any basis, including on the basis of race or religion, if doing so would “conflict with the organization’s religious beliefs.” This includes organizations that “provide federally funded child-welfare services, including promoting or providing adoption, foster, or family support services for children, or similar services.” This means that organizations that provide foster or adoptive services would be empowered to discriminate against same-sex couples, people of other faiths, unmarried people, or others whose relationships or behaviors do not conform to the organization’s particular religious beliefs.

Allows religious organizations and houses of worship to engage in political lobbying, while still maintaining their tax-exempt status. Specifically, this order would allow an organization that is speaking on a “moral or political issue from a religious perspective” to endorse or support political candidates. Currently, the tax code prohibits all 501(c)(3) organizations from endorsing or opposing political candidates. This provision would exempt religious organizations—and only religious organizations—from that mandate. The order also prohibits the Department of Treasury from imposing any tax penalty or burden to any organization that acts in accordance with beliefs that “marriage is or should be recognized as the union of one man and one woman, sexual relations are properly reserved for such a marriage, male and female and their equivalents refer to an individual’s immutable biological sex as objectively determined by anatomy physiology or genetics at or before birth, and that human life begins at conception and merits protection at all stages of life.”

Enacts far-reaching requirements on all federal departments and agencies to promptly rescind any rulings, directives, regulations, guidance, positions, or interpretations that are inconsistent with the order. This means that directives, rulings, regulations, guidance and interpretations that do not provide expansive religious exemptions may be rescinded or withdrawn by any agency or department of the federal government. This could include already existing protections enacted under the Obama administration for LGBTQ communities, women, and people of color, in their ability to seek access to reproductive services, employment, healthcare, education or social services.

Access a .pdf of this Press Advisory here.

For more policy analyses from the PRPCP, see our Policy Page, here.

Five Key Questions to Ask About the New Executive Order on Religious Liberty

Press Advisory: Five Key Questions to Ask About the New Executive Order on Religious Liberty

Date: May 3, 2017

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

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

Five Key Questions to Ask About the New Executive Order on Religious Liberty

In February, a draft of an Executive Order (EO) on religious liberty was leaked from the Trump Administration. This order would have had sweeping effects on the enforcement of federal law by all government agencies. In addition to harming LGBTQ communities, it would have had ramifications for unmarried pregnant and parenting women, patients seeking contraceptive care, religious minorities, cohabitating adults and others. President Trump is expected to sign an updated draft of the EO this week. The Public Rights/Private Conscience Project (PRPCP) has outlined five questions to ask when analyzing and reporting on the new order.

For more thorough analyses of religious exemptions, please visit our website, which includes numerous publications on the legal and policy implications of funding organizations that discriminate based on religion, religious exemptions’ effect on women of color, and an analysis of the First Amendment Defense Act. Additional analysis of the EO will also be posted to our website in the coming days.

1) Who does the EO apply to?  

Religious exemptions are special rights that allow religious practitioners to violate laws that conflict with their sincerely-held beliefs. A religious exemption, like the forthcoming EO, can apply to houses of worship, religious organizations, and/or individuals. It’s important to read the definition of “religious organization” carefully, however, as this term can often include large corporations that appear secular, like a hospital system or even a for-profit company. The term “person” is generally defined by federal law to include for-profit, publicly-traded companies like Walmart and ExxonMobil. Thus if the EO provides religious exemptions to all “persons,” this would go beyond the Supreme Court’s ruling in Burwell v. Hobby Lobby, which held that closely-held, for-profit companies are entitled to religious exemptions under the Religious Freedom Restoration Act (RFRA).

2) What religious beliefs are protected? 

Recent proposed and enacted religious exemptions, including a leaked draft of the EO, have singled out for special protection particular conservative religious beliefs about sex, marriage, and reproduction. These include the belief that: 1) marriage is the union of one man and one woman; 2) sexual relations are properly reserved to such a marriage; 3) male and female refer to an individual’s sex as determined at birth; and 4) human life begins at conception. Providing government support for particular religious beliefs raises serious Establishment Clause and Equal Protection concerns, as highlighted by a recent federal court opinion.

However other parts of the previously-leaked EO appear to apply far more broadly. For example, the requirement that federal agencies should “not promulgate regulations, take actions, or enact policies that substantially burden a person’s or religious organization’s religious exercise” could cover any religious belief.

3) Who is authorized to grant a religious exemption?

RFRA is a broad religious liberty law that prohibits the government from substantially burdening the exercise of religion unless doing so is the least restrictive means of furthering a compelling government interest. Typically, it is the judiciary’s responsibility to interpret and apply RFRA through litigation between a private party and the government. The leaked EO, however, orders federal agencies to interpret (RFRA) preemptively in deciding whether or not to enforce federal laws.

For example, under the EO the Equal Employment Opportunity Commission could interpret RFRA to exempt employers with a religious opposition to hiring transgender workers from compliance with Title VII of the Civil Rights Act. It could then decline to bring suits on behalf of, or even provide right-to-sue letters to, transgender workers who are discriminated against because of their employer’s religious beliefs. In such instances, it could be difficult to challenge an agency’s overly-broad interpretation of RFRA.

4) Who is harmed?

It’s clear that the proposed EO will harm many LGBTQ people. Less obvious, however, are the sweeping effects it is likely to have on many other groups. The leaked version of the EO specifically protects religious opposition to sex outside marriage; a provision that could sanction discrimination against unmarried pregnant and parenting women and cohabitating, unmarried adults more generally. The leaked EO would also gut the contraceptive coverage mandate of the Affordable Care Act, limiting coverage of necessary health care.  Religious practitioners, and especially religious minorities, could also be harmed. The EO would allow discrimination against those who do not share their employer’s religious beliefs. Further, it places government support behind particular religious beliefs that many religious observers do not share, such as the belief that a fertilized egg should be protected over the health of a pregnant person.

5) Are government contractors and employees included?

The leaked EO would provide broad religious exemptions to government contractors and employees, which poses particular Establishment Clause risks. It states that organizations do not “forfeit their religious freedom” when receiving government grants or contracts and orders agencies to provide religious exemptions to grantees. It also orders agencies to accommodate both federal employees and grantees who act upon the four particular religious beliefs outlined in question two, above. Thus the EO would allow faith-based organizations to place religious restrictions on the use of government funds, and to discriminate while carrying out government programs. It would also protect government employees who wish to act on their religious opposition to LGBTQ rights, extramarital sex, and reproductive health care.

Download a .pdf of this press advisory, here.

For more legal analyses from the Public Rights/Private Conscience Project, see our policy page, here.

Trump Attempts to Pit LGBTQ Communities, People of Color, and Women Against Muslim Refugees and Immigrants

Trump’s latest executive order highlights what is becoming standard practice within his administration: obscuring the destructive impact of an action on some marginalized communities by couching it in a feigned concern for “protecting” others.

Reblogged from Rewire News

At the tail end of a relentless first week of presidential action targeting the environment, immigrants, reproductive health care, Native communities, and the free speech rights and employment of federal workers, President Trump signed an executive order to halt refugee resettlement and travel from seven Muslim-majority countries.

The order suspends the entire U.S. refugee resettlement program and bans entry of persons from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.

On the whole, the order is dangerous, misguided, and deeply rooted in this administration’s commitment to a xenophobic, racist, and Islamophobic agenda. However, two sections in particular highlight a manipulative tactic that is becoming standard practice within the Trump administration: obscuring the destructive impact of an action on some marginalized communities by couching it in a feigned concern for “protecting” others.

Section one of the order states that “the United States [will] not admit those who engage in acts of bigotry and hatred … or those who would oppress members of one race, one gender, or one sexual orientation.”

Trump’s attempt to couch this order in paternalistic, hollow concern for LGBTQ communities, communities of color, and women is both dangerous and insincere. It directly ignores the lived experiences of Muslims within those communities, falsely implies that Islam’s principles are inconsistent with equality and justice, and is in direct contrast with the hostility Trump, his administration, and his appointees have exhibited toward these communities domestically and abroad. It is also a clear attempt to exploit support for these communities in a way that obscures the order’s oppressive effect on Muslim immigrants and refugees.

Trump has made clear, through his campaign rhetoric, cabinet appointments, and vice presidential selection, that he has no interest in protecting the rights of women, communities of color, or LGBTQ people. Despite superficial statements claiming he strongly supports LGBTQ rights, Trump, Vice President Pence, and most of their cabinet appointees have a strong commitment to laws that would harm LGBTQ and reproductive rights, including the First Amendment Defense Act and similar state bills. Trump also campaigned heavily on a “law and order” platform, which has demonized undocumented immigrants and communities of color by pushing forward a false narrative about the problem of “inner-city” crime—a term that has long been coded as racist and intended to target Black communities in particular.

Secondly, the order’s alleged commitment to rejecting bigotry rings particularly false because it is apparently aimed at prioritizing the resettlement of Christians in Muslim-majority countries. While it does not name Christians explicitly, the order directs the secretary of the State Department, in consultation with the secretary of Homeland Security, “to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” Absent from the order, of course, is any prioritization of the communities Trump claims he is invested in protecting from supposedly dangerous Muslim refugees and immigrants.

Last week, Trump told the Christian Broadcasting Network that he intended to help persecuted Christians with his new refugee policies, because, he claims, they have been “horribly treated” in the refugee resettlement process, despite evidence showing that Christian and Muslim refugees have been approved for resettlement at roughly the same rate in recent history.

As others have also pointed out, although Trump has claimed a strong support for “religious liberty,” the selective religious beliefs that he supports seem to be grounded more in a self-serving version of Christian nationalism than justice for communities directly harmed by his particular brand of white, cis-hetero Christian supremacy. Although there might be a vocal minority of Christian leaders speaking out in support of reducing or banning Muslims from entering the United States, “leaders of nearly every Christian denomination, along with those of other faiths” criticized the action, which they argued does “not reflect the teachings of the Bible, nor the traditions of the United States,” reported The Atlantic.

During the weekend, large-scale protests erupted across the country, prompting federal judges in New York, Massachusetts, Washington State, and Virginia to hold emergency hearings, which resulted in temporary orders halting enforcement of the order. Despite judicial intervention, there continues to be reports of people and families, even those with visas and green cards, being detained for hours without food or access to lawyers at airports across the country—and some have already been deported. Adding to the confusion, Trump has continued to defend the order and the Department of Homeland Security has issued a statement emphasizing that despite court orders, the ban will stay in effect.

The framing of this order should serve as a reminder to advocates, journalists, and others to remain vigilant in calling out and resisting Trump’s attempts to pit some of our important justice and equality interests against others—particularly when the communities in question are not inherently at odds, and the administration has no intent in furthering the substantive rights of those communities.

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.