Category Archives: State RFRAs

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.

 

“Religious Liberty” Executive Order Will Limit, Not Enhance, Religious Freedom

May 4, 2017 Today, President Trump signed an executive order that creates many more questions than answers about how the federal government intends to “protect the freedom of Americans and their organizations to exercise religion and participate fully in civic life.” Several of its provisions raise serious cause for concern.

The order—unlike a prior leaked draft—does not single out for special protection particular religious beliefs about sex, marriage, or reproduction. Nevertheless, it still opens the door to agency under-enforcement of federal laws in ways that will harm, not enhance, religious liberty. In particular, Section 4 of the order, entitled “Religious Liberty Guidance,” directs the Attorney General to issue guidance on “interpreting religious liberty protections in Federal law” to all federal agencies. This provision instructs Attorney General Jeff Sessions to interpret religious exemption laws, like the Religious Freedom Restoration Act (RFRA), in ways that may cause significant harm to vulnerable communities.

For example, Sessions could attempt to limit government enforcement of the Family and Medical Leave Act, the Civil Rights Act, the Fair Housing Act, or the Fair Labor Standards Act if he determines that enforcement will burden an individual’s or corporation’s religious liberty in violation of RFRA—even if a court would be unlikely to construe RFRA so broadly. More specifically, he could interpret RFRA to provide an exemption from Title VII of the Civil Right Act to employers who believe they have a religious obligation to proselytize to their non-Christian employees. If RFRA is interpreted by agencies to allow employers, landlords, healthcare providers and others to impose their religious beliefs on other individuals, this will significantly burden religious minorities who may find themselves shut out from participation in civic life.

While this order doesn’t require Attorney General Sessions to interpret RFRA and other exemptions in any particular way, we know that he has supported using ‘religious liberty’ as a tool to advance particular conservative beliefs while harming vulnerable communities—a position that many in Trump’s cabinet share. Furthermore, he has expressed hostility to religious minorities. While in the Senate, he voted against a proposed amendment that opposed placing a religious test on those entering the country, and he has called Islam a “toxic ideology.”

In the coming days and weeks, we will continue to update our analysis. Follow PRPCP’s policy page and blog for all of our most up to date information.

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.

EEOC Proposed Guidance Shows We Can Protect Religious Freedom & LGBTQ Rights

Press Release:
March 23, 2017

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

Subject:
EEOC Proposed Guidance Shows We Can Protect Religious Freedom & LGBTQ Rights

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

March 23, 2017: While the President and Congress consider acts to expand religious exemptions at the expense of LGBTQ and other rights, a proposed federal regulation demonstrates that we can—and should—protect both religious and LGBTQ communities. The Public Rights/Private Conscience Project (PRPCP) at Columbia Law School submitted commentary this week commending the Equal Employment Opportunity Commission (EEOC) on their “Proposed Enforcement Guidance on Unlawful Harassment,” which protects the right of religious employees to discuss their beliefs while prohibiting religiously-motivated harassment in the workplace.

Professor Katherine Franke, Faculty Director for the PRPCP commented, “At a time when we are witnessing government officials engaging in both troubling violations of the Establishment Clause and blatant forms of religion-based discrimination, the EEOC’s proposed guidelines offer a reasoned and careful way to harmonize religious liberty and equality in the workplace.”

Elizabeth Reiner Platt, Director of the PRPCP elaborates, “The proposed guidelines respect both the right to express one’s religious beliefs and the right to a safe and productive work environment. This kind of carefully tailored religious accommodation protects all workers from discrimination.”

The PRPCP’s letter notes that nearly one in three transgender workers, and up to 43% of gay, lesbian, and bisexual people, have faced employment discrimination. The proposed EEOC guidelines “appropriately explain that Title VII’s duty to accommodate religion does not amount to an official sanctioning of religiously-motivated harassment-including against LGBTQ employees, who already face pervasive discrimination in the workplace.”

The EEOC’s responsibility to protect religious minorities and LGBTQ persons is of critical importance, as the Trump Administration continues to issue Executive Orders that roll back LGBTQ protections and express disapproval of Muslims. Of particular concern is a potential Executive Order on Religious Freedom. If signed, the order could provide a special license for those holding certain conservative religious beliefs— including opposition to same-sex marriage, sex outside different-sex marriage, and abortion—to violate any regulations that conflict with these beliefs.

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, which, “not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another.”[1]

Read the full letter from the PRPCP here: http://tinyurl.com/PRPCP-Columbia-EEOC-Letter

For more information on the PRPCP, visit the PRPCP’s webpage, here: http://tinyurl.com/PRPCP-Columbia

The EEOC’s Proposed Enforcement Guidance on Unlawful Harassment is available here: https://www.regulations.gov/document?D=EEOC-2016-0009-0001

________________________________

[1] https://www.law.cornell.edu/wex/establishment_clause

WA Supreme Court: LGBT Discrimination No More About Flowers than Civil Rights Were About Sandwiches

Originally posted at Religion Dispatches, February 22, 2017

Last Thursday, the Washington Supreme Court issued a significant and unanimous decision in the ongoing dispute—being litigated in courts across the country—over whether antidiscrimination law must yield to the religious beliefs of business owners opposed to marriage equality. The case involved a florist, Barronelle Stutzman, who refused to provide floral arrangements for a wedding between same-sex partners because of her deeply held religious beliefs about marriage.

In prior cases including Elane Photography, LLC v. Willock and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, courts have come down against business owners who refuse to provide goods and services for weddings between same-sex couples. Opinions in these cases have found that antidiscrimination laws are neutral, generally applicable measures that do not favor secularism over religion, or single out particular religious groups for ill treatment. The right-wing legal nonprofit Alliance Defending Freedom represented the business owners in both of those suits, and is currently representing Stutzman, who says she plans to appeal Thursday’s decision to the U.S. Supreme Court.

The opinions in Elane Photography and Masterpiece Cakeshop have declined to analyze the application of LGBT antidiscrimination laws to religious objectors using the rigorous “strict scrutiny” test. This test, used to evaluate government actions that specifically disadvantage religion, requires a law to be the least restrictive (to the religious objector) means of achieving a “compelling” government interest.

In this latest opinion, State of Washington v. Arlene’s Flowers, the court did subject Washington’s antidiscrimination law to the strict scrutiny test. They did so because the free exercise provision of Washington’s state constitution has been interpreted to be more protective of religion than the federal First Amendment, raising the possibility that the lower level of scrutiny required under the federal Free Exercise Clause may be insufficient.

While the court declined to hold that the strict scrutiny test was necessary when evaluating neutral laws under the Washington constitution, it found that applying antidiscrimination law to religious objectors satisfied even this demanding test. Importantly, the court recognized that providing exemptions for religious objectors was inherently inconsistent with the entire purpose of antidiscrimination law.

Stutzman had argued that applying the law to her could not be necessary to achieving any compelling government interest, since there was no “access problem.” In other words—since the couple could purchase flowers elsewhere, application of antidiscrimination law in this case served no purpose. In response, the court held:

We emphatically reject this argument…”[t]his case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches.” Br. of Resp’ts Ingersoll and Freed at 32. As every other court to address the question has concluded, public accommodations laws do not simply guarantee access to goods or services. Instead, they serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace. Were we to carve out a patchwork of exceptions for ostensibly justified discrimination, that purpose would be fatally undermined.

This statement strikes at the heart of the dispute between religious objectors and LGBT couples and families. Too often, the vital role that antidiscrimination law plays in establishing the equal place of long-subordinated groups in civil society gets lost or ignored in claims that focus on the availability of flowers or cake. Efforts to limit the scope of antidiscrimination law will not stop at wedding-related services (and, indeed, a federal judge ruled last summer that the religious beliefs of a funeral home owner justified his discrimination against a transgender employee). Washington’s opinion is clear on the real purpose of these laws: guaranteeing equality, not roses.

PRPCP’s Testimony on Pennsylvania SB1306: No Additional Protections for Religious Freedom Are Necessary if State Adds Sexual Orientation and Gender Identity to Its Human Relations Law

Professor Katherine Franke, Faculty Director for the Public Rights/Private Conscience Project, was invited to testify before the Pennsylvania Senate’s Labor and Industry Committee on the need to include greater protections for religious liberty in a bill that would add Sexual Orientation and Gender Identity to Its Human Relations Law. She argues that current language contained in Pennsylvania’s Human Relations Act, the U.S. and Pennsylvania Constitutions, and Pennsylvania’s Religious Freedom Protection Act, provide robust protections for the religious liberty rights of faith-based employers, and as such no additional language is needed in SB 1306 to protect employers’ rights to the free exercise of religion.

Indeed, some of the language contained in amendments to companion bills previously pending before the Pennsylvania legislature risks building into the Commonwealth’s Human Relations Act an overly-solicitous accommodation of religious preferences in a manner that could create a violation of the Establishment Clause. An additional accommodation of religious belief, such as that contained in A08770 offered to SB 1307 in the Senate Housing and Urban Affairs Committee, “A08770,” is therefore unnecessary and, moreover, risks unsettling a well-considered balance set by the Pennsylvania legislature and courts between religious liberty and other equally fundamental rights. By creating a religious accommodation that would meaningfully harm other Pennsylvanians, A08770 conflicts with established First Amendment doctrine.

Read the testimony here.

Protecting Rights Holders from Harm: Democrats Introduce the Do No Harm Act

Dozens of religious liberty laws were introduced into state legislatures this year, designed to address manufactured threats to religious believers. In fact, religious liberty rights are amply protected by state and federal law in every state, yet religious conservatives have been on the offensive to use religion as part of a backlash against same-sex couples gaining the right to marry, and against the rights of transgender people to equality and dignity.

Last Wednesday the defenders of equality went on the offensive themselves, introducing into Congress a law that would limit overreaching in the name of religion. Representatives Joseph Kennedy III and Bobby Scott introduced into the House of Representatives the Do Not Harm Act. The bill seeks to amend the Religious Freedom Restoration Act (RFRA), a federal law that was enacted in 1993 to protect religious minorities from discrimination but has since been used to infringe on the constitutional and statutory rights of third parties in the name of religion.

A few years ago, the Supreme Court’s overly broad interpretation of RFRA led to the Hobby Lobby decision where the Court found that certain for-profit entities could avoid compliance with a requirement in the Affordable Care Act ensuring contraceptive coverage at no cost to their employees by claiming a religious objection to doing so. After Hobby, many feared an increase in the number of people and institutions that sought to use religious exemption laws to limit the rights of third parties. However, if the GOP-led Congress passes the Do No Harm Act, religious objectors seeking to use overly broad interpretations of religious accommodations laws will be dealt a serious blow. The Act would not only protect the rights of women and LGBTQ folks, it would also protect the rights of people of color, a group less talked about in this context who stand to suffer great harm from some religious accommodation laws.

Let’s take the latest religious exemption case heard by the Supreme Court, Zubik v. Burwell, as an example of how some religious exemptions can cause great harm to communities of color. The plaintiffs in Zubik are non-profit religious organizations that refuse to comply with the accommodation that the government provides for faith-based entities that have religious objections to providing contraception coverage. These employers may notify either the U.S. Department of Health and Human Services (HHS) or their insurer of their religious objection to contraceptive coverage. The insurer itself then provides the contraceptive coverage to the employees, at no additional cost to either the enrollees or the objecting organization. Earlier this week the Court decided to punt this case back to the lower courts to work out a solution. If the plaintiffs in Zubik had won, thousands of women of color who work at religious non-profits, including universities, hospitals, and social service organizations would have been stripped of their right to no-cost insurance coverage for contraception. Little Sisters of the Poor Home for the Aged in Denver was one of the employers that challenged the contraception requirement in Zubik. Like most nursing homes, the employees at the Little Sisters nursing home are women of color.

While these organizations employ women of all backgrounds, the case has huge ramifications for women of color since lack of access to quality reproductive health care plays a large role in the overall health disparities faced by communities of color today.

How so? The advocates of overly broad protections for religious liberty rights under RFRA, just like the plaintiffs in Zubik, want to be excused from complying with generally applicable laws (like anti-discrimination laws) even if doing so would impose a material harm on other people – such as denying their right to adequate health care, to equal opportunity in the workplace, or to a have their marriage universally recognized as valid.

The Do No Harm Act would fix this by limiting the reach of RFRA to situations where no harm is done to others. A reasonable clarification that balances the rights of religious liberty against other important rights. In fact, this approach is exactly what the Supreme Court has taken in interpreting the limits of the First Amendment’s religious liberty protections.

For this reason, the Do No Harm Act is necessary to protect the equal rights of people of color. Unfortunately, the threat posed by overly broad interpretations of religious accommodation laws to communities of color doesn’t end at Zubik. There is a real danger that such laws could strip away many of the rights and protections won by people of color over the last few decades. While federal laws including the Civil Rights Act and Fair Housing Act contain strong protections against racial discrimination, those who wish to discriminate could also demand an exemption from federal antidiscrimination law under the current version of RFRA. Here, a religious objector would have to show that serving a particular group of people would burden their exercise of religion. Such race-based religious objections are not uncommon. A few months ago an interracial couple in Mississippi, a Black man and a Native American/Latina woman, were evicted from a recreational vehicle (RV) park because the landlord said his church opposed interracial marriages. The eviction forced the couple to move to another RV park with higher rent. If the Do No Harm Act is passed in Congress, the landlord would not be able to use religion as a license to engage in otherwise illegal race discrimination.

The Do No Harm Act can also be used as a tool for state legislatures and advocates hoping to push back against many of the state RFRA bills that have been popping up in state houses across the South. Many of these bills which were modeled after the federal RFRA have been used to provide religious objectors with a license to discriminate against not only LGBTQ folks, but racial minorities as long as the religious objectors can show that the state law placed a burden on their religion. For example, a number of state bills would allow a baker, a caterer, a rental hall, a photographer and others to refuse services not only to same-sex couples getting married but to interracial couples as well. If the Do Not Harm Act passes, state legislatures would be emboldened to pass similar amendment to state RFRAs.

This week’s introduction of the Do No Harm Act by two Democratic Congressmen marks a shift to the offensive for those who seek to create a reasonable balance between religious liberty and other fundamental rights, including equality. While we’ve been playing defense in state legislatures across the country, the bill marks the need for proactive measures to be taken in the fight for meaningful and sustainable anti-discrimination laws and protections for all citizens.

The Latest On Zubik v. Burwell: Religious Organizations Propose A Compromise That They Themselves Would Oppose

Originally posted at Religion Dispatches

With headlines like “53 Percent Say Making Nuns Participate in Obamacare Birth Control Mandate is Unfair,” the conservative Christian press has found its angle on Zubik v. Burwell. For the rest of us, here’s a way through the legal thicket.

Two weeks ago, following oral argument in the latest challenge to the Affordable Care Act’s (ACA) contraceptive mandate, the Supreme Court issued an unusual order. Acting more like a mediator than the nation’s highest court, it asked the parties to try and find a compromise solution that would ensure employees and their families receive cost-free contraceptive coverage without a burdening the employers’ religious beliefs.

The case, Zubik v. Burwell, involves a number of religious nonprofits that object to the existing religious accommodation they receive under the ACA. The current accommodation allows religious employers that do not wish to provide birth control coverage to their employees to opt out by submitting a form to the federal government. If they do this, the government requires the nonprofit’s insurance company or third party administrator to provide separate contraceptive coverage. Religious organizations like Little Sisters of the Poor—those headline-friendly nuns—argue that even this workaround violates their religious liberty, because providing the form makes them complicit in the provision of birth control. They claim that the accommodation violates their rights under the Religious Freedom Restoration Act (RFRA), a federal statute enacted in 1993 which forbids the federal government from burdening religious exercise unless there is no less burdensome way to achieve a compelling government interest.

The Supreme Court order asked both sides to file supplemental briefing on “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.”

In other words, is there a way to give both sides what they want?

The religious nonprofits responded confidently in their brief, “[t]he answer to that question is clear and simple: Yes.” Unfortunately, what follows is a convoluted “no.” The alternatives put forward by the petitioners include contraceptive-only insurance plans that do not currently exist, would create significant state and federal regulatory challenges (for one, they may not be enforceable contracts under some state laws), would limit access to contraceptives—and which the organizations would in fact still oppose.

The petitioners’ brief explains that “at a minimum,” an acceptable solution would require “two separate health insurance policies (that is, the group health insurance policy and the individual contraceptive coverage policy)” with “separate enrollment processes, insurance cards, payment sources, and communication streams.” Unlike the current accommodation that provides for “seamless” birth control coverage, the brief states “if the contraceptive coverage is to be truly separate, not just an automatic and unavoidable component of the petitioner’s plan, then it must have an enrollment process that is distinct from (and not an automatic consequence of) enrolling in the employer’s plan.”

In other words, employees would have to opt in to coverage, which the government has repeatedly explained will result in lower rates of access and use.

Acknowledging that contraceptive-only plans do not actually exist, the brief proposes that the government “require or incentivize commercial insurance companies to make separate contraceptive coverage plans.” Further, “[t]o the extent there are any concerns about the financial stability of a contraceptive-only plan that charges no premiums and cannot pass on any of its costs,” it suggests that the government subsidize the plans (never mind that Title X, a program which currently provides reproductive health care to low-income patients, is chronically underfunded). The brief dismisses other administrative and legal problems that such a system would create, in one instance simply claiming the “Court should discount any asserted concerns about financial or practical difficulties that might ensue should large numbers of petitioners’ employees opt for separate coverage.”

Here are four big problems with what they propose:

#1: no contraceptive-only insurance plans exist!

Moreover, we don’t know whether such plans could exist, whether they would conflict with state laws, or how they would be created, administered, and funded. It’s a completely unfeasible interpretation of RFRA to allow petitioners to demand a “less restrictive” alternative that could conceivably work in theory. The alternative must be one that will actually work in practice.

#2: It will impose burdens on employees and their families.

The proposed scheme would require employees to opt-in for contraceptive coverage. Throughout litigation, the government has emphasized that even seemingly minimal barriers to contraceptive coverage result in less access to and use of birth control. Further, requiring employees to opt-in to coverage would allow employees to cut off access to contraception for their covered family members.

#3: It will reduce access to contraceptive and non-contraceptive women’s health care.

Women generally receive annual care, including a pap smear, breast exam, STI testing and treatment, blood pressure test, and contraceptive counseling, from the same doctor during the same appointment. This makes the idea of a “contraception only” plan very different from other services like dental or vision plans—contraception is an integral part of women’s health care. By requiring employees to find doctors who accept each of their two plans, and then schedule two different appointments, the petitioner’s suggestion essentially doubles the barriers to accessing necessary healthcare. This may not seem like a hefty burden, but for women balancing childcare and low-wage jobs, and who may have limited paid sick time, it is significant.

#4: The religious nonprofits would oppose their own plan.

After laying out a supposed less restrictive alternative, the petitioners’ brief adds “[t]o be clear, that is not to say that petitioners endorse such an approach as a policy matter.” It notes that many of the nonprofits believe contraception to be “immoral,” and therefore “may disagree as a policy matter with government programs, such as Title X, that make contraceptives or abortifacients more widely available to their own employees or anyone else.” Moreover, the brief states that “petitioners certainly have the right, protected by the First Amendment, to make that disagreement known.”

What this means is that while petitioners are suggesting that the government adopt entirely new laws and regulations regarding contraceptive coverage, and allocate additional funding for contraception, they will nevertheless continue to lobby (and perhaps litigate) against these very actions.

Requiring the government to come up with an entirely new legal and regulatory alternative any time it places a substantial burden on religion—regardless of political, legal, or administrative feasibility, cost, or potential impact on third parties—is a scary prospect. This is especially true considering the weak “substantial burden” test the Court adopted in Hobby Lobby, which defers almost entirely to the religious objectors’ assessment of whether they have been burdened. Such an immoderate interpretation of RFRA would give religious objectors the power to upend complex laws and programs that are created to benefit the public at large.

Let’s say, for example, a company like Hobby Lobby had a religious objection to minimum wage laws. Under the petitioner’s argument, a less restrictive way for the government to achieve its goal of guaranteeing a living wage would be to allow the company to pay subpar wages and pass a new law allocating funds to pick up the remaining tab. A religious objection to environmental regulations? Pollute away and suggest that the government create, fund, and administer a new program to clean up the mess. A religious objection to posting OSHA notifications? Tell the government to hire workers to chase down the company’s employees and warn them about environmental hazards they may face at work.

All of these solutions would certainly be less burdensome on the employer. They also happen to be expensive, inefficient, impractical, and bordering on absurd. Moreover, they are likely to create financial and administrative burdens not just for the government, but for the company’s employees and the public. And since they are merely suggestions for less restrictive alternatives rather than mandates, Congress could decide that passing a new law is simply not worth the trouble.

The petitioner’s proposed plan is not a less restrictive alternative. It’s a less restrictive fantasy, and turns RFRA’s balancing test into a trump card for religious believers.

Missouri Law Professors Maintain Constitutional Amendment SJR 39 Would Violate the Establishment Clause

Link to Document/Text here:
http://bit.ly/1TOUnSu

Media Contact:
Elizabeth Reiner Platt
Associate Director, Public Rights/Private Conscience Project
ep2801@columbia.edu

April 12, 2016

Fifteen law professors, most from universities in Missouri, issued a memorandum today arguing that Missouri’s Senate Joint Resolution 39, which would amend the Missouri constitution to create new and very broad religious liberty rights, is unconstitutional. The Missouri House Committee on Emerging Issues has scheduled a hearing on SJR 39 for this afternoon.

SJR 39 would give many religious organizations, individuals, for-profit entities, and state workers the right to violate municipal antidiscrimination ordinances and contractual obligations that conflict with their “sincere religious belief concerning marriage between two persons of the same sex.”

The amendment would protect a wide range of discrimination in employment, housing, public accommodations, and government services against same-sex couples and supporters of marriage equality. For example, the amendment would allow:

  • A religious hospital to violate a “good cause” provision in a collective bargaining agreement and fire a nurse who expresses support for marriage equality;
  • An adoption agency that has a contract with the city of St. Louis to violate that city’s antidiscrimination ordinance and refuse to work with same-sex couples;
  • A private restaurant chain to break a contract to cater a wedding when it learns that the couple is of the same sex; and
  • A judge to ignore the U.S. Supreme Court and the Missouri Code of Judicial Conduct and refuse to marry a same-sex couple.

The memo, which was spearheaded by the Public Rights/Private Conscience Project at Columbia Law School, concludes that SJR 39 violates the Establishment Clause of the First Amendment by accommodating religion in a way that meaningfully harms other Missourians. It was signed by professors from Washington University in St. Louis, University of Missouri-Kansas City, and Saint Louis University School of Law.

“SJR 39 does not just disrupt the careful balance between religious and secular rights enshrined in the Constitution,” said Columbia Law School Professor Katherine Franke, director of the Center for Gender & Sexuality Law, “it’s also unconstitutionally vague. It’s impossible to predict the range of otherwise prohibited behavior that would be given absolute immunity under this amendment.”

Elizabeth Reiner Platt, associate director at the Public Rights/Private Conscience Project, said SJR 39 “is not about religious freedom, which is already very well-protected by the robust liberty of conscience provision of the Missouri Constitution. It merely codifies a right to discriminate.”

Read the memorandum here.

Law Professors Condemn Mississippi and Georgia Religious Liberty Laws as Unconstitutional Over-Reaching

Read the Mississippi Memorandum here:
http://bit.ly/1SNYHiz

Read
 the Georgia Memorandum here:
http://bit.ly/1pGlmmO

Media Contact:
Elizabeth Reiner Platt
Associate Director, Public Rights/Private Conscience Project
ep2801@columbia.edu

April 5, 2016—More than a dozen law professors with expertise in constitutional and civil rights law have signed memoranda published by the Public Rights/Private Conscience Project at Columbia Law School that analyze two so-called “religious liberty” bills recently passed in Mississippi and Georgia.

Mississippi’s bill, HB 1523, was signed into law today by Governor Phil Bryant. The Project’s analysis concludes that HB 1523 is among the broadest religious accommodation bills to be passed by any state legislature. It builds into state law unconstitutional exemptions for particular religious views on marriage, sexual relations, workplace sex equality, and gender identity. Under HB 1523, religious organizations, individuals, for-profit entities, and even government workers are granted the right to discriminate against a broad range of Mississippians in a variety of contexts including housing, employment, public services, education, and adoption.

Even worse, it prohibits the government from withdrawing grants or contracts from organizations that discriminate, and could therefore lead to the use of taxpayer funds to sponsor religiously-motivated discrimination.

The memoranda, which outline both bills’ constitutional and policy flaws, were signed by a total of 19 law professors from schools including the University of Mississippi School of Law, Mississippi College of Law, Emory University, Atlanta’s John Marshall School of Law, Mercer University School of Law.

“HB 1523 is a solution in search of a problem, as religious belief and practice already receive strong protection under state and federal law,” said Columbia Law School Professor Katherine Franke, director of the Center for Gender & Sexuality Law. “Rather than strengthening religious liberty protections, the bill radically overreaches by favoring religious believers at the expense of other private citizens.  This amounts to a violation on the First Amendment’s Establishment Clause.”

Elizabeth Reiner Platt, associate director at the Public Rights/Private Conscience Project, said that the bills “are representative of wave of legislation that has cloaked resistance to LGBT rights, and especially the Supreme Court’s Obergefell v. Hodges decision, as a movement for religious freedom.”

Like HB 1523, Georgia’s HB 757 would have condoned and encouraged both public and private discrimination. Governor Nathan Deal has promised to veto the bill.

While the memos’ signatories have a range of views on the appropriate balance between religious and secular rights, in the words of Governor Deal they “do not think we have to discriminate against anyone to protect the faith-based community.”