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Columbia Law Experts Denounce DOJ Religious Liberty Guidance as Attack on Religious Liberty and Fundamental Equality Rights

Press Statement:
October 6, 2017

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

Columbia Law School’s Public Rights/Private Conscience Project (PRPCP) denounces the memorandum released today by the Department of Justice (DOJ) entitled the “Federal Memorandum for Religious Liberty Protections.” This document, and its implementation guidance misinterpret the meaning and scope of religious liberty under the Constitution and the federal Religious Freedom Restoration Act (RFRA), demonstrating this administration’s continued commitment to elevating a particular set of religious beliefs over the safety and equality rights of women, LGBTQ people, people of color, and religious minorities.

As we have previously noted, we are concerned that this guidance will lead to the inappropriate and destructive under or non-enforcement of a host of essential health, labor, and antidiscrimination laws and policies. “Today’s DOJ guidance will have tangible consequences for a range of communities, including LGBTQ communities, particularly those who rely on government-funded services and programs to live and survive,” said Ashe McGovern, PRPCP’s Legislative and Policy Director. “This guidance essentially requires all federal agencies to incorporate the Department of Justice’s flawed interpretation of religious liberty law when considering new rules, programs, or guidance, and will undoubtedly lead to discrimination and denial of services, by granting legal impunity to organizations and programs that discriminate with taxpayer funds.”

PRPCP is also concerned that the regulation oversteps the boundaries of DOJ’s power, by improperly encroaching onto the judiciary’s duty to interpret important and sensitive questions regarding the meaning and scope of religious liberty. RFRA was passed by Congress in 1993 as an effort to support and protect religious minorities who experience discrimination, and to ensure that courts carefully balance religious liberty rights with other fundamental rights to equality and justice. “The DOJ has decided to put its thumb down on a scale that Congress carefully designed by enacting RFRA, and that courts have since interpreted as such, in a way that disregards the fundamental rights of those experiencing religious-based discrimination,” says McGovern.

The DOJ’s misinterpretation of RFRA and religious liberty law generally is likely to decrease rather than increase religious plurality. Inappropriately-broad exemptions run the risk of allowing religious objectors to become religious enforcers, permitting employers, health care providers, landlords, and service providers to impose their religious views on others who do not share them. “PRPCP is especially wary that complex questions regarding religious freedom and its limits are being made by cabinet members that appear to oppose the separation of church and state, and have supported discrimination against religious minorities,” said Elizabeth Reiner Platt, Director of the PRPCP. “Jeff Sessions has long sought to narrow the reach of the Establishment Clause, even suggesting in 2016 that states could establish an official religion. He has been an adamant supporter of the President’s anti-Muslim travel ban. This raises questions about his commitment to true religious freedom and plurality.”

“Ultimately,” McGovern says, “the DOJ’s guidance not only enables what advocates are calling a ‘License to Discriminate’ against LGBTQ communities, although that intent is clear. This guidance is also an attack on our Constitution, and the careful balance it strikes between religious liberty and other fundamental rights to equality and justice.”

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

Welcome to Ashe McGovern, Associate Director, Public Rights/Private Conscience Project

September 12, 2016

The Public Rights/Private Conscience Project at Columbia Law School’s Center for Gender & Sexuality Law is thrilled to welcome our newest staff member, Ashe McGovern. Ashe joins the PRPCP as Associate Director, filling the role held by the project’s Elizabeth Reiner Platt prior to her appointment as Director of the project in June of this year.  Ashe will be working with the PRPCP leading our efforts to analyze the scope and effects of legislative language that seeks to broaden religious liberty rights and will coordinate our work with state Attorneys General.

Before joining Columbia, Ashe was a Policy Analyst at the Center for American Progress (CAP) in Washington, DC, where they engaged in state and federal public policy research, analysis, and advocacy with a focus on LGBTQ poverty and the criminalization of LGBTQ communities. Prior to CAP, Ashe worked as an Equal Justice Works Fellow at New York Legal Assistance Group, where they launched the LGBTQ Health and Economic Justice Initiative to provide direct legal services and advocacy to low-income LGBTQ communities in New York.

While a student at Cornell Law School, Ashe worked at several civil rights organizations including the National Center for Lesbian Rights and Lambda Legal, and was a Holley Law Fellow at the National LGBTQ Task Force. They additionally participated in legal clinics representing clients on a variety of matters, including clients experiencing violence in prison, families seeking lawful immigration status and low wage workers seeking union recognition. Ashe is the author of When Schools Refuse to Say Gay: The Constitutionality of Anti-LGBTQ “No-Promo-Homo” Public School Policies in the United States, 22 CORNELL J.L. & PUB. POLICY 465 (2012), and their work has been published in The Nation, NPR, Huffington Post, The Advocate, and ThinkProgress, among other sites. Prior to law school, Ashe worked as an adult education teacher in Brooklyn.

“Ashe’s experience and leadership working at the intersection of racial, economic, and sexual justice will strengthen the Public Rights/Private Conscience Project’s work illuminating the meaning and stakes of the rise of religious liberty claims in the current civil rights climate,” said Professor Katherine Franke, PRPCP’s Faculty Director.

For more about Ashe, please see their staff page at the PRPCP website, here.  To learn more about the PRPCP’s work, please see our homepage, here, and follow us on Facebook and Twitter.

New York City’s PreK Program’s Church State Problem

upk

New York City’s school system is no stranger to church state problems. Since 2005, the city has rented space for public schools in religious buildings, causing conflicts ranging from lease provisions that require students to be taken off-site for state-mandated sex education classes to students having to walk by crosses and other religious images as they make their way to school. Last year, the City awarded $19.8 million in funds to religious schools to hire security guards. This school year, New York City’s Department of Education will be dealing with another church state issue as the city enrolls the largest number of four year olds ever into its pre-kindergarten program.

In September, tens of thousands of pre-kindergarten students will be attending class for the first time as part of the De Blasio Administration’s hallmark universal full day pre-k (UPK) program, now in its third year.[1] In order to reach its enrollment goals, the city has been urging religious schools and community organizations to host the UPK program, since most public schools have reached capacity. The city is now providing religious schools roughly $10,000 per student, raising potential conflicts with church state laws. More problematically, under a guidance document issued by the De Blasio administration these religious schools are permitted to teach from religious texts, so long as they do so “objectively as part of a secular program of education,” and are allowed to preference hiring teachers that share the school’s religion. While schools must cover religious symbols on their exterior entrance and UPK class rooms, they need not do so where this is “not practicable.” De Blasio also issued a rule allowing UPK programs to hold breaks for optional prayer.

In New York State, citizens are protected from government advancement of religion by both the Establishment Clause of the U.S. Constitution, which prohibits the government from passing any law “respecting an establishment of religion,” and the so-called “Blaine Amendment” of the New York Constitution. New York’s Blaine Amendment is more restrictive than the Establishment Clause, and maintains that the State should not use public money in aid “of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught.”[2]

Unfortunately, both of these protections have been substantially watered down over the years by federal and state court decisions that have allowed the government to fund religious schools through various programs. For example, the Supreme Court decision Agostini v. Felton upheld a New York State program that sent public school teachers into parochial schools to teach remedial education. The New York State Supreme Court found in College of New Rochelle v. Nyquist that a college’s affiliation with religion did not make it ineligible for state aid under the Blaine Amendment, unless the “affiliated religious denomination controls or directs the institution towards a religious end” or the college is “controlled or directed to a degree so as to enable the religious authorities to propagate and advance—or at least attempt to do so—their religion.”

Despite this case law, New York’s UPK program poses opportunities for violations of the Establishment Clause and Blaine Amendment. A significant issue is the fact that UPK students are so young. Some courts have placed heightened scrutiny in deciding whether there was an Establishment Clause violation when vulnerable groups, like young students, are involved. In Rusk v. Crestview Local Schools for example, a district court ruled that an elementary school violated the Establishment Clause by distributing flyers advertising community activities sponsored by churches to “impressionable elementary students” who might believe the activities were school-endorsed.[3] This decision was overruled by the Appeals court which found that the parents were the ones who would receive and observe the flyers not the kids, therefore quelling concerns that the flyers would leave an impression on the students. However, the district court’s decision shows that courts sometimes take the age and vulnerability of school students into account when deciding whether an act violates the Establishment Clause.

The potential for coercive indoctrination in the UPK program is real. Publicly-funded UPK programs are supposed be available for all students regardless of religious belief, and there does not appear to be any clear information on the City’s Pre-K Finder to let parents know that a program is housed in a religious institution. Thus, for example, a Muslim or atheist family could apply for a UPK program that is located in a Christian school either because they were not aware of its religious identity, they did not realize that such schools are permitted to teach religious texts, practice coreligionist hiring, and hold prayer breaks, or simply because of a lack of alternative options close to their home. This could leave the four-year-old child in a position where they have to see religious symbols that are in direct conflict with their religious teachings every day, wear a uniform bearing the religious name of their school, read religious materials, watch their fellow students break for prayer, and follow instruction from teachers and an administration that practices a faith different from their own. It is not hard to see how such a scenario could lead to impermissible indoctrination of an impressionable young mind.

Church state issues in education are complicated, especially in a city like New York which is one of the most religiously diverse cities in the nation.[4]   However, law and policy makers have a responsibility to make sure that students are in culturally and religiously sensitive learning environments that respect and pay homage to our city’s religious diversity. Children’s minds are too impressionable to be subjected to religious materials and practices that could potentially indoctrinate them with a particular religion.

[1] Ben Chapman, Mayor De Blasio’s Universal Pre-K Program Still Failing to Reach Some Families, New York Daily News (April 19,2016) http://www.nydailynews.com/news/politics/poor-new-yorkers-left-free-universal-pre-k-article-1.2607773

[2] College of New Rochelle v. Nyquist, 326 N.Y.S.2d 765, 765 (1971)

[3] Rusk v. Crestview Local Schools, 220 F.Supp.2d 854 (6th Cir. 2002)

[4] Jed Kelko, America’s Most Religiously Diverse Cities, Citylab (Dec. 20, 2012) http://www.citylab.com/politics/2012/12/americas-most-religiously-diverse-cities/4227/

Katherine Franke’s Testimony to House Committee on Oversight and Government Reform Regarding the First Amendment Defense Act (FADA)

Today Professor Franke will deliver testimony on behalf of twenty leading legal scholars providing an in depth analysis of the meaning and likely effects of the First Amendment Defense Act (FADA), were it to become law.  We were particularly compelled to provide testimony to the Committee because the first legislative finding set out in FADA declares that: “Leading legal scholars concur that conflicts between same-sex marriage and religious liberty are real and should be addressed through legislation.”  As leading legal scholars we must correct this statement: we do not concur that conflicts between same-sex marriage and religious liberty are real, nor do we hold the view that any such conflict should be addressed through legislation. On the contrary, we maintain that religious liberty rights are already well protected in the U.S. Constitution and in existing federal and state legislation, rendering FADA both unnecessary and harmful.

Rather, FADA establishes vague and overly broad religious accommodations that would seriously harm other Americans’ legal rights and protections. Instead of protecting the First Amendment, the First Amendment Defense Act likely violates the First Amendment’s Establishment Clause.  The Act purports to protect free exercise of religion and prevent discrimination, yet in fact it risks unsettling a well-considered constitutional balance between religious liberty, the prohibition on government endorsement of or entanglement with religion, and other equally fundamental rights.

A link to Professor Franke’s written testimony may be found here, and via our Policy Page.

A live-streamed video of the Congressional hearing is accessible via YouTube, here.

A link to further information about the First Amendment Defense Act may be found here.

ACLU Charges Federal Government with Violating the Reproductive Rights of Refugee Girls

by Kira Shepherd

Under the federal government’s watch, refugee girls are being denied access to emergency reproductive health services that they desperately need. This is what the ACLU is arguing in their latest effort to keep overly broad religious exemption claims from infringing upon women’s rights and reproductive freedom. In late June, the civil liberties group filed a complaint charging the U.S. government with violating the First Amendment’s prohibition on establishment of religion by funding faith-based organizations that deny the unaccompanied minors they serve abortion and contraceptive access.

Since 2013, it is estimated that tens of thousands of unaccompanied children from El Salvador, Honduras, and Guatemala have crossed the border fleeing violence and poverty back home, or to be reunited with family members in the U.S.  Experts estimate that as many as 60 to 80 percent of women and girls who make this journey are raped on their way to the United States.[1] When unaccompanied minors cross the border, they are more often than not apprehended by federal agents and placed in shelters funded by the federal Office of Refugee and Resettlement (ORR). In 2014, nearly 57,500 unaccompanied minors were apprehended and transferred to ORR shelters.[2]

ORR issues grants to private entities, including a number of religiously affiliated organizations, to care for migrant minors until they are placed with family members in the U.S. The United States Conference of Catholic Bishops (USCCB) is one of ORR’s largest religious-affiliated grantees; it received $10 million in 2014 alone to care for unaccompanied minors. The USCCB and all the organizations that they subcontract with, such as Catholic Charities, explicitly deny their clients access to contraception and abortion – even in cases where the clients were raped or sexually abused

Take for instance the story of one young refugee, mentioned in the ACLU complaint, who was raped by one of her guides on her journey to the U.S. The minor found out she was pregnant while in ORR custody at a Catholic Charities facility in Miami, and became distraught at the possibility that she would not be allowed an abortion. After threatening to kill herself if she could not get an abortion, she was admitted to a hospital for suicidal ideation. After leaving the hospital, she found out that the Catholic Charities she was staying at refused to take her back because she was seeking to terminate her pregnancy.  His House, another religious organization that receives federal funding, refused to admit her as well. She was transferred to another facility and ORR eventually approved her request for funding for an abortion.

According to the ACLU, the federal government violated the constitutional guarantee of the separation of church and state by permitting the USCCB and other organizations to impose religiously based restrictions on the services unaccompanied immigrant minors received with taxpayer funds. In addition, the ACLU asserts that the federal government violated a number of statutes— including the Homeland Security Act, which states that government programs must fully protect the interests of unaccompanied immigrant minors — as well as an ORR regulation requiring all ORR-funded providers to provide unaccompanied immigrant minors who are victims of sexual assault with access to reproductive healthcare.

The ACLU started investigating the USCCB’s contraception and abortion refusals after hearing reports from workers at religiously affiliated organizations charged with caring for refugee teens. Workers claimed that some organizations were imposing their beliefs on minors by forcing them to leave the program if they needed reproductive care. After hearing these reports, the civil liberties organization made a Freedom of Information Act (FOIA) request for documents to determine the full scope of the problem and the government’s role. According to the documents they received, the government gave a few religiously affiliated organizations, such as USCCB and its sub grantees across the country, permission to refuse on religious grounds information about, access to, or referrals for contraception and abortion, even if the young person in their care has been raped. The government provides funding to USCCB through Catholic Charities to provide care for undocumented minors in a number of states across the country – including Arizona, California, Florida, New York, Texas, Virginia, and Washington.

This lawsuit is asking the court to step in and ensure that all religiously affiliated federal government grantees provide their clients with necessary and required care. If the ACLU wins, it will be a huge blow to religious organizations that have been imposing their religious views on refugee girls, denying them their reproductive rights. These organizations would have to start providing all mandated services to their clients or forgo federal grant funding.  If written broadly enough, the suit could even stop religiously affiliated government grantees from practicing other types of discrimination based on their religious beliefs, such as anti-LGBTQ discrimination. The question that the court should answer in this case is whether the government violated the Establishment Clause by advancing and endorsing a particular set of religious beliefs. And the answer appears to be an overwhelming yes. By allowing USCCB to impose its religiously based restrictions on services offered through a federal program, ORR has essentially subsidized USCCB’s religious beliefs. USCCB utilized a government contract to further its religious belief that abortion and contraception are wrong and impermissible. As the ACLU argues, that violates the guarantee of neutrality towards religion enshrined in the Establishment Clause.

[1] Ester Yu-His Lee, Faith Groups are Trying to Block Emergency Contraceptive from Raped Migrant Children, ThinkProgress (March 5, 2015) http://thinkprogress.org/immigration/2015/03/05/3627571/faith-refugee-contraception/.
[2] GAO Report, Unaccompanied Children, HHS Can Take Further Actions to Monitor Their Care, available at http://www.gao.gov/assets/680/675256.pdf.

5 Ways that Religious Exemptions Threaten Communities of Color

Five Reasons Why People of Color Should be Worried About Religious Exemptions

Yesterday Ebony.com published an article by the Public Rights/Private Conscience’s Associate Director of Racial Justice Kira Shepherd, which discussed five reasons communities of color should be worried about religious exemptions.  These reasons included the potential for religious objectors to use religious exemptions to justify race discrimination, the intersectional discrimination faced by LGBTQ people of color in society, and the long-standing history of the religious right using religious liberty to justify racist legislation and policies.  To read the full article, see the following link at Ebony.com:  http://www.ebony.com/news-views/religious-liberty-discrimination#axzz4BfPXd3N4

We’re hiring! Seeking an Associate Director for the Public Rights/Private Conscience Project

We are pleased to announce that we are seeking an Associate Director to work with the Public Rights/Private Conscience Project at the Center for Gender and Sexuality Law at Columbia Law School.

The job description is as follows below, and may be accessed via Idealisthttp://www.idealist.org/view/job/xjk6T6cT55Cp/

Job Description

Columbia Law School seeks an Associate Director to serve as part of the project’s onsite team reporting to Elizabeth Reiner Platt, Project Director of the Public Rights/Private Conscience Project at Columbia Law School.

The Public Rights / Private Conscience Project is a unique law and policy think tank based at Columbia Law School. It’s mission is is to conceptualize and operationalize new frames for understanding religious exemptions and their relationship to reproductive and sexual liberty and equality rights, and to disseminate those frames through legal scholarship, public policy interventions, advocacy support, and popular media representation.

Responsibilities

Programming

  • Conduct legal and policy analyses of state and federal proposals that would expand the scope and nature of religious liberty rights.
  • Play a key role in formulating and executing a pilot project to engage state attorneys and solicitors general around the tension between sexual and reproductive rights/liberty and religious liberty, with the goal of sparking state-level outcomes from the relevant offices.
  • Facilitate participation of academic partners in efforts to publicize the impact of religious exemption laws on PRPCP’s focus issues and communities.
  • Work with the PRPCP Director to build our capacity to actively participate in the multiple advocacy coalitions forming around religious exemption work, particularly in the reproductive rights and LGBT rights communities, and to undertake more collaborative work with advocacy organizations.
  • Maintain PRPCP’s presence on social media, including Facebook, Twitter, and regular content posting to PRPCP’s blog. (10%).
  • Assist in logistical planning for meetings, convenings, and conferences.
    Management & Funding

Work with Director to identify potential partners for programs, projects, and initiatives.

  • Assist in drafting grant proposals and annual budgets for Program initiatives.
  • Assist in preparing grant reports and other compliance documents required by Columbia Law School or Columbia University.

Elizabeth Platt Appointed Director of the Public Rights/Private Conscience Project

 

 

 

 

 

 

 

 

 

 

 

 

 

June 1, 2016 – The Public Rights/Private Conscience Project (PRPCP) at Columbia Law School is delighted to announce that Elizabeth Reiner Platt has been appointed as the Project’s Director, effective today.

Liz Platt joined the PRPCP last November as Associate Director, and has led our efforts to address the constitutional infirmities of legislation introduced in scores of state legislatures that would create overly broad religious liberty rights.

A graduate of NYU School of Law, Liz was awarded a Flora S. and Jacob L. Newman Prize (Outstanding Note for the Review of Law & Social Change) for her Note, Gangsters To Greyhounds: The Past, Present, And Future Of Offender Registration, 37 N.Y.U. Rev. L. & Soc. Change 727 (2013).  After law school she was a Carr Center for Reproductive Justice Fellow at A Better Balance, and then worked as a staff attorney with MFY Legal Services representing clients with mental illness.  She currently serves on the New York City Bar Association Sex and Law Committee and the Urban Justice Center Sex Workers Project Host Committee.

“I am excited to have Liz succeed Kara Loewentheil as Director of the PRPCP, leading the preeminent academic think tank conceptualizing the constitutional and policy implications of religious exemptions and their relationship to reproductive and sexual liberty, and racial, sexual and sexual orientation-based justice,” said Professor Katherine Franke, the PRPCP’s Faculty Director.

“I’m delighted to take on this new role at the PRPCP,” said Liz Platt. “It’s clearly a critical moment to examine the tension between religious rights and sexual, racial, and reproductive freedoms, and I look forward to continuing and expanding the Project’s important work at the intersection of law, policy, and academic scholarship.”

For more about Liz Platt go here.  The Public Rights/Private Conscience Project’s website is here.

Supreme Court Gives Itself an Exemption from Deciding Zubik

Yesterday, the Supreme Court issued a bewildering non-decision in one of the year’s most important cases, Zubik v. Burwell. After granting cert in and consolidating seven cases, receiving at least seventy amicus briefs in addition to those filed by the parties, hearing oral argument, and requesting additional briefing, the Supreme Court has finally decided…. not to decide.SCOTUS

Zubik involves a challenge by nonprofit religious organizations to a requirement of the Affordable Care Act (ACA) that contraceptive coverage be included within most employee and student health insurance plans. The nonprofits argue that the ACA’s existing religious accommodation—which allows organizations to opt out of providing contraceptive coverage themselves, but ensures that this coverage is seamlessly provided by a health plans’ insurance company—itself violates the nonprofits’ religious rights under the Religious Freedom Restoration Act (RFRA). The plaintiffs lost nearly all of their challenges at the circuit court level, but SCOTUS’s unanimous order yesterday vacating those decisions and remanding the suits back down gives the nonprofits another chance to demand an even broader accommodation.

In declining to issue a substantive legal opinion, the Court stated that the parties should be “afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’” It’s difficult to fathom what such an approach would look like at this point, but that’s hardly the worst part of the Court’s order. What is far more problematic is the absolute lack of guidance it provides to lower courts at a time when the scope and meaning of RFRA is hotly contested.

Not only do significant differences between the parties remain within the current dispute, but yet another RFRA challenge to the contraceptive mandate is currently being litigated at the district court level. This challenge was brought by an individual health care consumer who argues that participating in a health insurance plan that includes coverage for contraceptives violates his sincerely-held religious beliefs. Such a claim stretches RFRA’s protections far beyond their breaking point, yet the Supreme Court has utterly declined to provide an analysis that might guide the district court in adjudicating this and other RFRA claims.

In addition, the Court’s order ignores the basic structure of the RFRA test. The Act states that the federal government may not substantially burden the sincere exercise of religion unless it is the least restrictive means of furthering a compelling governmental interest. While the precise meaning of nearly every element of the RFRA test is under-theorized, the basic structure of the test is clear—no accommodation is necessary unless there is a substantial burden on sincere religious exercise. In defiance of this threshold test, the Court’s order essentially asks the government to agree to provide a “less restrictive” alternative to the nonprofits without clearly holding that their religious liberty has been burdened in the first instance.

In its opinion, the Court specifically notes that it “does not decide whether petitioners’ religious exercise has been substantially burdened.” Nevertheless, it suggests that the government’s procedures “could be modified” so as to be acceptable to the nonprofits. This subverts the RFRA test, and could encourage the government in this and future cases to provide religious organizations with exemptions that far exceed what is required by law, and that substantially harm third parties.

Apparently, the Zubik plaintiffs aren’t the only ones who want an exemption from their legal responsibilities. In its order, SCOTUS has exempted itself from its obligation to issue a substantive decision on the case before it. To be fair, the order was likely issued in order to avoid a four-four split by the Court. Thus the real blame may be laid on yet another exemption— Congress’s attempt to exempt itself from its obligation to hold a hearing for Supreme Court nominee Merrick Garland. Until there is a ninth justice on the court, we may have to prepare for a confounding year of Constitutional remands, punts, and ties.

Legal Scholars Reveal How the Justice Department Has Given Government-Funded Religious Organizations a Pass for Discrimination

May 10, 2016—For two years in a row, in Burwell v. Hobby Lobby and Zubik v. Burwell, the Obama administration has argued before the U.S. Supreme Court that the Religious Freedom Restoration Act (RFRA) does not give religious believers the right to accommodations that would harm others. Yet an analysis issued by Columbia Law School’s Public Rights/Private Conscience Project (PRPCP), and signed by leading law professors, finds that for nearly a decade the U.S. Department of Justice (DOJ) has bestowed this right on religious recipients of government grants.

The PRPCP analysis argues that a 2007 DOJ ruling, which grants overly broad religious accommodations to federal contractors, misinterprets RFRA and violates the Establishment Clause of the First Amendment. The Bush-era DOJ ruling, commonly known as “the World Vision Memo,” creates exemptions for faith-based organizations (FBOs) that receive federal grant funding from compliance with federal anti-discrimination laws. The ruling has never been withdrawn by the Obama Administration.

President Obama has condemned recently enacted “religious liberty” laws in North Carolina and Mississippi, though his administration maintains a policy that has the same discriminatory effects, the PRPCP’s report shows. Faith-based organizations that are recipients of federal grants have increasingly relied upon the DOJ’s erroneous interpretation of RFRA to demand broad religious accommodations in order to allow them to receive public funding and then elect not to provide essential services that they deem objectionable, including providing emergency contraception to unaccompanied migrant girls who have been raped during transit, or providing transition-related healthcare to transgender patients.

Since President Obama took office, LGBT and reproductive rights advocates have demanded that his administration withdraw the World Vision Memo, and the PRPCP analysis supports this position. The DOJ’s World Vision Memo misreads the law of religious liberty by allowing faith-based organizations to pick and choose which parts of a federal grant they will perform, thus running afoul of the Establishment Clause.

Katherine Franke, the Sulzbacher Professor of Law at Columbia Law School and the faculty director of the Public Rights/Private Conscience Project, explained that “neither RFRA nor the Constitution permits the government to accommodate religious belief in a way that harms other citizens, particularly the vulnerable intended beneficiaries of these federal programs. The DOJ’s misinterpretation of RFRA in this context surrenders to faith-based organizations the power to rewrite publicly funded programs to conform to grantees’ religious beliefs.”

“The idea that an organization can apply to provide reproductive health care for migrant minors and then refuse to provide that care because it conflicts with their religion is, frankly, absurd,” said Elizabeth Reiner Platt, Associate Director at the Public Rights/Private Conscience Project. “This policy makes it impossible for Congress to effectively address the pressing needs of incredibly vulnerable populations.”

Read the analysis here.