Category Archives: Trump

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.

 

“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.

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

Trump’s Executive Order Barring Muslims is Unconstitutional

PRESS STATEMENT

FROM: 
Public Rights/Private Conscience Project

RE: Trump’s Executive Order Barring Muslims is Unconstitutional

DATE: January, 30 2017

MEDIA CONTACT: Elizabeth Reiner Platt, elizabeth.platt@law.columbia.edu, (212) 854-8079

Columbia Law School’s Public Rights/Private Conscience Project joins with thousands of lawyers, law professors, and legal organizations across the country in announcing that President Donald Trump’s recent Executive Order writing a religious preference into U.S. policy is unconstitutional. The Order—issued late Friday afternoon, hours after the administration recognized Holocaust Remembrance Day—suspends the entire U.S. Refugee Admissions Program, declares that “entry of nationals of Syria as refugees is detrimental to the interests of the United States,” and cuts off entry into the U.S. for certain nationals of majority-Muslim countries. Several provisions of the order are clearly intended to block immigration by Muslim refugees while providing a preference for some Christian refugees to escape violence and persecution by resettling in the U.S. The Executive Order amounts to both a form of state sponsored discrimination against persons of one particular faith and a religious preference for persons of another faith, in violation of the First Amendment of the Constitution.

While the Refugee Admissions program is suspended, Trump’s Executive Order nevertheless allows entry of refugees on a case-by-case basis if the administration deems their admission “in the national interest,” specifically mentioning members of minority religions abroad. When and if the program is reinstated, the Order directs the agencies to “prioritize” members of minority religions. The Order also directs agencies to recommend legislation to the President that would “assist with such prioritization.” There is no Constitutionally-legitimate reason why the U.S. should prioritize the entry particular religious groups, or determine that the entry of certain religious believers is or is not in the “national interest.” While written in ostensibly neutral language, it is apparent that the Order’s preference for refugees who are religious minorities in their country of origin is intended to shut out Muslim refugees.

Current federal law prohibits any preference, priority, or discrimination in the issuance of immigrant visas on account of the applicant’s race, sex, nationality, place of birth, or place of residence – religion is not on the list, 8 U.S.C. § 1152(a)(1)(A). Yet, under the Supreme Court’s interpretation of the Establishment Clause of the First Amendment, the new Trump immigration Executive Order is clearly unconstitutional. The state may not “act[] with the intent of promoting a particular point of view in religious matters,” nor may it “aid, foster, or promote one religion or religious theory against another.” Similarly, the state’s laws and policies must be neutral with respect to religion and between religions – that is, it may not favor adherents of one religion over another. The Court, and Justice Kennedy in particular, has taken the view that the Establishment Clause together with the Free Exercise Clause embrace an anti-persecution principle – expressly linking the religion clauses to the Equal Protection clause’s non-discrimination norm. In the words of Chief Justice Rehnquist, “we have sometimes characterized the Establishment Clause as prohibiting the State from ‘disapprov[ing] of a particular religion.’” Thus, there are many grounds on which to challenge the new anti-immigrant Executive Order, both for persons holding valid immigrant visas and for those seeking new visas or refugee status. One of those grounds is that this odious new policy violates the Establishment Clause of the First Amendment.

While the Order leaves open the confounding questions of what constitutes a religious “minority” considering the great diversity of beliefs and practices within major world religions, as well as how the State will identify religious adherents, it is clear from both the face of the Order and the context around its creation that Trump’s actions are intended to discriminate based on religious belief. President Trump has pledged to instate a Muslim ban throughout his campaign, and he has now taken a significant step to fulfill this promise. “At its core, the Establishment Clause of the First Amendment forbids the U.S. government from determining which religions or religious beliefs are or are not acceptable, desirable, or American,” said Elizabeth Reiner Platt, Director of PRPCP. “This Order violates that crucial limitation.”

“It is alarming that one of the Trump Administration’s first policies is to issue a religious litmus test for refugees and immigrants seeking entry to the U.S.,” observed Katherine Franke, Sulzbacher Professor of Law and Faculty Director of PRPCP. “If the First Amendment of the U.S. Constitution stands for anything it is that the state must neither prefer or discriminate members of any particular religious tradition when it issues policy.”